Important point
There is no specific form prescribed or intended for conveying information required to be given u/s 50 of NDPS Act and all that was necessary was that accused should be made aware of existence of his right to be searched in presence of one of the officers named in Section itself.

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985—Section 50—Recovery of 570 grams of opium from possession of accused—PW2 SHO informed accused of his right to have his search conducted either in presence of Dy. S.P. PW3 who was a Gazetted Officer and happened to be present there or in presence of a Magistrate—Dy. S.P. had arrived on spot after apprehension of accused but before his arrest—High Court set aside conviction holding that consent given by accused to be searched in presence of Deputy Superintendent of Police was not sufficient compliance of Section 50 of the Act—Appeal—Section 50 of the Act applied in case of personal search of a person and not to search of a vehicle, a container or a bag or premises—Omission might not vitiate the trial as such but because of inherent prejudice which could be caused to accused, it would render conviction unsustainable —No specific form prescribed or intended for conveying the information u/s 50 of the Act—Accused must be made aware of existence of his right to be searched in presence of one of the officers named in the Section—Fair play and transparency in process of search were given the primacy—All options were made known to respondent-accused and he himself opted to be searched in presence of Dy. S.P.—High Court was not correct in holding search not in compliance with requirement of Section 50 of the Act—Question of prejudice or bias has to be established and not inferred—Impugned judgment was liable to be set aside and conviction to be restored.
       Held : A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag, or premises. (See Kalema Tumba v. State of Maharashtra and Anr. (JT 1999 (8) SC 293), State of Punjab v. Baldev Singh (1999 (6) SCC 172) and Gurbax Singh v. State of Haryana (2001(3) SCC 28). The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh’s case (supra). (Para 10)
       It is not disputed that there is no specific form prescribed or intended for conveying the information required to be given under Section 50. What is necessary is that the accused (suspect) should be made aware of the existence of his right to be searched in presence of one of the officers named in the Section itself. Since no specific mode or manner is prescribed or intended, the Court has to see the substance and not the form of intimation. Whether the requirements of Section 50 have been met is a question which is to be decided on the facts of each case and there cannot be any sweeping generalization and/or strait-jacket formula. (Para 12)
       As was noticed in Raghbir Singh’s case (supra) the Act affords the person to be searched a safeguard to the effect that he may require the search to be conducted in the presence of a senior officer. The senior officer may be a Gazetted Officer or a Magistrate depending upon who is conveniently available. That being the purpose of the Act, if any Gazetted Officer even if he is a police officer of a particular rank is present nearby when the accused is detained, the accused may be asked as to whether he would like to be searched in the presence of that officer or a Magistrate. The foundation of the stand taken by the accused-respondent which found favour with the High Court is that if he is a member of the raiding party the requirements of Section 50 are not met. This is not legally tenable, and in any event on the facts of the present case it was not so because PW-3, the Deputy Superintendent of Police reached the spot after the person was detained. (Para 18)
       The conclusions of the High Court would have been correct if the officer proposing to effect the search is a Gazetted Officer and he gives option to be given under Section 50 to the person detained to be searched in his presence. In that event, the requirement of Section 50 would not met because the officer proposing to effect the search cannot act in dual capacity; first as an officer authorized under Section 42 to search a person and second as the Gazetted Officer in whose presence the accused may opt to be searched. (Para 21)

Judgment

Arijit Pasayat, J.—Leave granted.

2. The State of Rajasthan is in appeal against the judgment of learned Single Judge, Rajasthan High Court, Jaipur Bench, Jaipur holding that there was non-compliance with the mandatory requirements of Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the ‘Act’). The said conclusion was arrived at on the ground that though the accused respondent had been given the option of being searched in the presence of Shri Satyender Singh (PW-3), the Deputy Superintendent of Police, he was in essence a member of the raiding party and, therefore, the search in his presence cannot at all be said to be in consonance with Section 50 of the Act, though he was a Gazetted Officer.

3. Background facts in a nutshell are as under:

On 8.9.1995 Prem Shaker Meena (PW-2), SHO Police Station, Kotwali, Baran having received information about illicit trafficking in narcotic substances, rushed to the place pointed out by the informant and apprehended the accused respondent. Satyendra Singh, Dy. S.P. (PW-3) also reached there. Subsequently, being of the suspicion that accused respondent was in possession of contraband, the SHO informed him of his right to have his search conducted either in presence of Shri Satyendra Singh, Dy. S.P. (PW-3) who was a Gazetted Officer and happened to be present there or in the presence of any magistrate. The accused consented for his search to be conducted in the presence of the Dy. S.P. (PW-3). On being searched, 570 grams of opium was recovered from his possession in the presence of Ramesh Chand (PW-5) and Rajendra Kumar (PW-6). Out of the recovered opium, a sample weighing 30 grams was taken and was sealed. The remaining opium was also sealed. The accused was accordingly arrested vide arrest memo Ex. P-5 and memo of recovery was prepared. The SHO, thereafter, registered a case vide FIR Ex. P-4 and deposited the recovered opium in the ‘Malkhana’. During investigation, the police recorded the statement of witnesses and sent the sample to the Forensic Science Laboratory. On chemical examination, the sample contained in the packet marked ‘B’ gave positive tests for the chief constituents of coagulated juice of opium poppy having 5.43% morphine.

4. After completion of all these formalities, the accused was charge sheeted under Sections 8 and 18 of the Act. The Trial Judge framed charges against the accused under Sections 8 and 18 of the Act, to which the accused denied and claimed trial.

5. The learned Sessions Judge, Baran held that the accused was guilty, convicted him in terms of Sections 8 and 18 of the Act and sentenced him to undergo 10 years RI with a fine of rupees one lakh with a default stipulation of one year’s RI.

6. In appeal, the main stand of the accused respondent was that there was non-compliance with the requirements of Sections 42 and 50 of the Act. The High Court held that since the accused was searched on a public road and the contraband articles were seized, Section 42 of the Act had no application in view of Explanation appended to Section 43 of the Act. It was noted that Prem Shanker (PW-2) who was an authorized officer under Section 42 of the Act informed the accused of his right to be searched in the presence of the Deputy Superintendent of Police (PW-3) who happened to be a Gazetted Officer and was present at the site and if he desired, he can be taken to any Magistrate. The accused consented for his search in the presence of the Deputy Superintendent of Police and accordingly search was conducted in the presence of PW-3, the Deputy Superintendent of Police which was witnessed by other witnesses, Ramesh Chandra (PW-5) and Rajendra Kumar (PW-6). But, it was held that the consent given by the accused to be searched in the presence of the Deputy Superintendent of Police (PW-3) was not sufficient compliance of Section 50 of the Act.

7. Learned counsel appearing for the State of Rajasthan submitted that the High Court’s approach is clearly erro

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2005 Supreme(SC) 623

Important pointThere is no specific form prescribed or intended for conveying information required to be given u/s 50 of NDPS Act and all that was necessary was that accused should be made aware of existence of his right to be searched in presence of one of the officers named in Section itself.

Cases Referred (9)

Important point
There is no specific form prescribed or intended for conveying information required to be given u/s 50 of NDPS Act and all that was necessary was that accused should be made aware of existence of his right to be searched in presence of one of the officers named in Section itself.