The interpretation of Section 50 of the NDPS Act and the requirement to inform the accused of their right to be searched in the presence of a gazetted officer or a Magistrate requires clarification by a larger Bench.

REFERENCE ORDER

1. This is an appeal preferred by the accused against the decision of the Division Bench of the High Court of Gujarat. The appellant herein was found guilty of the offence punishable under Section 31 of the Narcotic Drugs and b Psychotropic Substances Act, 1985 (for short "the NDPS Act") and was sentenced to undergo 10 years imprisonment with a fine of Rs 10 lakhs.

2. When the matter came before this Court, the appellant raised a contention that Section 50 of the NDPS Act was not duly complied with and the conviction and sentence of the appellant was, therefore, illegal. The appellant relied on a decision of the Constitution Bench of this Court in State

of Punjab v. Baldev Singh I. The contention of the appellant is that the officer, C who conducted the search, did not inform him of his right to be searched in the presence of a gazetted officer or a Magistrate. The police only told him that the search on his body will be carried out and whether he wanted to be searched in the presence of any gazetted officer or a Magistrate. The Division Bench of the High Court held that this is sufficient compliance with Section 50 of the NDPS Act and the conviction of the appellant was upheld.

3. Counsel for the appellant submits that the Constitution Bench in Baldev Singh easel has held that it is not enough that the accused be informed or intimated that he would be searched in the presence of a gazetted officer or a Magistrate but he should be informed of his right to be searched in the presence of a gazetted officer or a Magistrate and if there is any violation in this regard, it will be violation of Section 50 of the NDPS Act.

4. When the matter came up before this Court, it was found that in some of the decisions rendered by this Court, a slightly different view was taken than what was expressed by the Constitution Bench with regard to interpretation of Section 50 of the NDPS Act. In Joseph Fernandez v. State of Goa2 a Bench of three Honble Judges held that even when the searching officer informed him that "if you wish you may be searched in the presence f of a gazetted officer or a Magistrate"; it was held that it was in substantial compliance with the requirement of Section 50 of the NDPS Act, and the Court observed that it did not agree with the contention that there was non - compliance with the mandatory provisions contained in Section 50 of the NDPS Act. In another decision of this Court in Prabha Shankar Dubey v. State of M.p3 the following information was conveyed to the accused: (SCC 9 p. 63, para 9)

"By way of this notice, you are informed that we have received information that you are illegally carrying opium with you, therefore, we are required to search your scooter and you for this purpose. You would like to give me search or you would like to be searched by any gazetted officer or by a Magistrate?"

This was held to be substantial compliance with Section 50 of the NDPS Act. In Krishna Kanwar v. State of Rajasthan4 the same question was considered and it was held that there is no specific form prescribed or initiated for conveying the information required to be given under Section 50 of the NDPS Act and it was held that: (SCC p. 618, para 21)

"What is necessary is that the accused (suspect) should be made aware of the existence of his right to be searched in the 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 generalisation and/or a straitjacket formula."

5. A reference was also made to an earlier decision of this Court in Manohar Lai v. State of Rajasthan5 wherein this Court held that: (SCC p. 392, para 2)

"It is clear from Section 50 of the NDPS Act that the option given thereby to the accused is only to choose whether he