IMPORTANT POINT
Even when a search is made by a gazetted officer it is obligatory for the prosecution to inform the accused of his right to be searched before a gazetted officer or before a Magistrate, as provided under Section 50 of the NDPS Act.

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985-Section 20B(2) r/w Section 50-Conviction for possession of 9 grams of Charas-Legality of-Search made on prior information-Accused demanding search to be made before Magistrate or Gazetted Officer-Search officer declaring it not necessary-Charas allegedly recovered from pant pocket of accused-Mandatory requirement of Section 50 not complied with-Fact that searching officer himself was a gazetted officer could not obviate compliance of mandatory provisions of Section 50-Alleged possession and recovery of Charas doubtful-Conviction vitiated.
       Section 50, which is supposed to be the minimum safeguard afforded to an accused, provides that when a search is about to be made of a person under Section 41 or Section 42 or Section 43, and if the person so requires, then the said person of whom, search is about to be made has to be taken to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. The argument of the learned counsel for the respondent is based upon the expression used in Section 50 to the effect "any person duly authorised under Section 42" and, therefore, a distinction is sought to be made in case of a search between an empowered officer and a search made by an authorised officer. But the said argument is devoid of any substance, since Section 42 itself also speaks of search to be made by an officer, as is empowered by a general or special order by the Central Government or as is empowered by a general or special order by the State Government. A combined reading of the provisions of Section 42 and Section 50 would make it crystal clear that whenever a search of a person is about to be made on the basis of personal knowledge or information received in that behalf, then if the person to be searched requires to be taken to a gazetted officer or the nearest Magistrate, the same must be complied with and failure to compliance of the same would constitute an infraction of the requirements of the provision of Section 50, which would ultimately vitiate the conviction. For the purpose of complying with the provisions of Section 50, no differentiation can be made on a plain reading of the language used in Section 50, depending upon the officer who is going to search the person concerned. In our considered opinion, since the search is about to be effected on the basis of any prior information or personal knowledge, which the person going to search has the reasons to believe that an offence under the Act is being committed, then for the sanctity of the search itself, the person to be searched has been afforded the minimum right to be searched before another gazetted officer or the Magistrate and that right cannot be taken away, merely because the officer going to search happens to be a gazetted officer, who has been empowered either by the Central Government or by the State Government by a general or special order. In fact the legislature has enacted the safeguard contained in Section 50 to obviate any doubt of the illicit articles under the Act and this provision was engrafted having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act, namely the shifting of the onus to the accused and the severe punishment to which he becomes liable. (Para 4)
       In the case in hand, the evidence of PW 1 indicates that even though the obligation of the officer had not been discharged by way of informing the accused of his right to demand that the search be conducted in the presence of a gazetted officer or a Magistrate but the accused himself wanted to be searched before another gazetted officer or a Magistrate but that was not acceded to. In view of the evidence of PW 1, as indicated in the earlier part of this judgment, the accused himself having wanted to be searched before a gazetted officer or a Magistrate and the same having been denied, there cannot be any doubt that failure on the part of the prosecution in complying with the provisions of Section 50, renders the recovery of illicit article suspect and vitiates the conviction and sentence of the accused, since the conviction in the case in hand is based solely on the alleged possession of Charas, which was recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act. In the aforesaid circumstances, the conviction and sentence is set aside. (Para 4)

JUDGMENT

Pattanaik, J.-Leave granted.

2. The appellant was tried by the learned Additional Sessions Judge, Mahsana in the State of Gujarat, for the offence under Section 20-B(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act ), as he was found in possession of 9 gms. of Charas on 10.5.1992, which he was selling outside his house. The learned Addl. Sessions Judge, on consideration of the prosecution evidence, came to the conclusion that prosecution has been able to establish beyond reasonable doubt that Charas was found from the pocket of the trouser of the accused, which weight about 9 gms. and as such the accused must be held to have committed the offence under Section 20-B(2) of the Act. He accordingly, convicted the accused of the said offence and sentenced him to undergo rigorous imprisonment for 10 years and a fine of rupees one lakh. On appeal by the accused, the High Court affirmed the conviction and sentence and hence the present appeal.

3. The prosecution case in nutshell is that on receipt of certain information that the accused is dealing with narcotics, the empowered officer called the panch witnesses and raided the house of the accused. While the accused was sitting on a cot, the person of the accused was searched and from his pant pocket, 9 gms. of Charas was recovered, which later on was established as Charas. The factum of recovery of Charas from the pant of the accused is established through the panch witness PW 1 and the seizure list Exh. 6 and Exh. 17 but the said witness PW 1 in cross-examination, candidly stated that the accused himself had requested for being taken to the Magistrate for being searched but the Police had declared that it was not necessary. PW 2, the senior Police Officer, also was examined in this case and he gave out the details about the raid and seizure as well as drawing of the Panchnama. In assailing the conviction, the learned counsel for the appellant contended that the mandatory requirements of Section 50 of the NDPS Act have not been complied with inasmuch as notwithstanding the fact that the accused himself requested for being taken to the Magistrate for the purpose of search, the Police did not accede to the same and, therefore, the conviction is null and void.

4. The learned counsel appearing for the respondent, on the other hand contended that in the case in hand, the search itself having been made by a Gazetted Officer namely PW 2, it cannot be said that there has been an infraction of Section 50 of the Act, and, therefore, the conviction cannot be held to be invalid. The question for consideration, therefore, is whether when a search is made by a gazetted officer, is it obligatory for the prosecution to inform the accused of his right to be searched before a gazetted officer or before a Magistrate, as provided under Section 50 of the Act? According to the learned counsel for the respondent, it is only when a search is made by an authorised officer under Section 41(2) of the Act, it is only then, the provisions of Section 50 can be attracted but when a search is made by an officer of gazetted rank of the department of Central Excise, who is empowered under sub-section (2) of Section 41, then the provisions of Section 50 are not required to be complied with inasmuch the empowered officer himself is a gazetted officer. According to the learned counsel for the accused appellant, however the provisions of Section 50 are required to be complied with irrespective of the fact whether the search is being made by the empowered officer, who may be an officer of the gazetted rank or by an officer duly authorised by the empowered officer under Section 42 of the Act. To ensure fairness in the search itself and for compliance of Section 50 of the Act, no differentiation can be made whether the search is being made by the empowered officer, who obviously is an officer of a gazetted rank or the authorised officer, who may be a subordinate officer

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2000 Supreme(SC) 1391

IMPORTANT POINTEven when a search is made by a gazetted officer it is obligatory for the prosecution to inform the accused of his right to be searched before a gazetted officer or before a Magistrate, as provided under Section 50 of the NDPS Act.

Cases Referred (2)

IMPORTANT POINT
Even when a search is made by a gazetted officer it is obligatory for the prosecution to inform the accused of his right to be searched before a gazetted officer or before a Magistrate, as provided under Section 50 of the NDPS Act.