2009 Supreme(SC) 731

2009(4) Supreme 42
SUPREME COURT OF INDIA
Dr. Arijit Pasayat, Lokeshwar Singh Panta and P. Sathasivam, JJ.
State of U.P. — Appellant
versus
Subhash Kumar Singh Tomar — Respondent
Criminal Appeal No. 237 of 2004
Decided on : 15-04-2009

IMPORTANT POINT
It is an obligation of Empowered Officer and his duty before conducting search of person of a suspect on basis of prior information to inform the suspect that he has the right to require his search to be conducted in the presence of a Gazetted Officer or a Magistrate. The failure to so inform the suspect of his right would render the search illegal because the suspect would not be able to avail of the protection which is in compliance with Section 50 of NDPS Act.

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 20(b), 50 – Recovery and seizure of 500 grams of charas from possession of respondent accused – Conviction by Trial Court – Appeal – Allowed by High Court acquitting respondent accused – State appeal – Before the High Court only stand taken by accused was that there was non-compliance with requirement of Section 50 of Act – High Court found on going through evidence of PWs 1 and 2 that there was nothing to suggest that requirement of Section 50 was complied with – It is an obligation of Empowered Officer and his duty before conducting search of person of a suspect on basis of prior information to inform the suspect that he has the right to require his search to be conducted in the presence of a Gazetted Officer or a Magistrate – The failure to so inform the suspect of his right would render the search illegal because the suspect would not be able to avail of the protection which is in compliance with Section 50 – Similarly, if the person concerned required on being so informed by the Empowered Officer or otherwise i.e. that search be conducted in the presence of a Gazetted Officer or Magistrate the Empowered Officer is obliged to do so and failure on his part to do so would cause prejudice to the accused and also render the search illegal and the conviction and sentence to the accused based solely on recovery may treat the search as bad – This being the position in law, impugned judgment of High Court not suffered from any infirmity to warrant interference – Appeal dismissed. (Paras 2 to 4)

       Facts of the Case :

        1. Respondent accused was convicted herein in the instant case for being found in possession of 500 grams of charas. On appeal High Court acquitted accused.

        2. Present appeal has been filed against said order of acquittal passed by High Court.

       Findings of the Court :

        High Court found on going through evidence of PWs 1 and 2 that there was nothing to suggest that requirement of Section 50 was complied with. It is an obligation of Empowered Officer and his duty before conducting search of person of a suspect on basis of prior information to inform the suspect that he has the right to require his search to be conducted in the presence of a Gazetted Officer or a Magistrate. The failure to so inform the suspect of his right would render the search illegal because the suspect would not be able to avail of the protection which is in compliance with Section 50. Similarly, if the person concerned required on being so informed by the Empowered Officer or otherwise i.e. that search be conducted in the presence of a Gazetted Officer or Magistrate the Empowered Officer is obliged to do so and failure on his part to do so would cause prejudice to the accused and also render the search illegal and the conviction and sentence to the accused based solely on recovery may treat the search as bad. This being the position in law, impugned judgment of High Court not suffered from any infirmity so as to warrant interference.

       Result : Appeal dismissed.