IMPORTANT POINT
It is imperative on the part of officer to apprise the person intended to be searched of his right under Section 50 of the NDPS Act, to be searched before a Gazetted Officer or a Magistrate.

JUDGMENT

K.S. Radhakrishnan, J.

1. The short question that has come up for consideration in this appeal is whether the empowered officer, acting under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’) is legally obliged to apprise the accused of his right to be searched before a Gazetted Officer or a Magistrate and whether such a procedure is mandatory under the provisions of the NDPS Act.

2. PW1, Additional Superintendent of Police (Crimes), Jaipur City, Jaipur got secret information that on 25.2.2001 one Ashok Kumar, the appellant herein would be selling smack to a person near Nandipur under Bridge. After completing the formalities PW1 along with two independent witnesses reached near Nandpuri under Bridge. At about 4.55 P.M. a person came on a scooter, who was stopped by the police force and was questioned. Exhibit P-3, notice was given by PW1 under Section 50 of the NDPS Act to the appellant to get himself searched either before a Magistrate or a Gazetted officer. The appellant gave his consent in writing on Ex.P-3 itself stating that he has full confidence in him and agreed for search. Upon search two packets had been recovered from the right and left pockets of the pant of the appellant. The contra-banned was weighed by PW7, goldsmith and the total weight of the packets was 344 gms. From each packet two samples of 10 gms. were taken and sealed and remaining packets were sealed separately. The appellant was then arrested and the scooter was seized.

3. PW1 gave a written report to the Station House Officer, Malviya Nagar Police Station, Jaipur to register FIR No.112/2001 under Section 8 and 21 of the NDPS Act. Ex-P-19, report of the Public Analyst of the Rajasthan State Forensic Laboratory, Jaipur showed that the samples contained the presence of diacetylmorphine (Heroin). On completion of the investigation, challan was filed against the accused. Learned Special Judge, NDPS framed the charge under Sections 8 and 21 of the NDPS Act. Before the Special Judge, prosecution examined 14 witnesses and produced Ex. P1 to P19. The accused-appellant in his statement under Section 313 of the Code of Criminal Procedure stated that false case had been foisted against him.

4. The Sessions Court after having found guilty, convicted the appellant and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1 lakh and, in default, to further under go simple imprisonment for one year. The appellant preferred Criminal Appeal No.1157 of 2003 before the High Court under Section 374 of the Code of Criminal Procedure. The appeal was, however, rejected by the High Court on 9.2.2007 against which this appeal has been preferred by way of special leave.

5. Ms. C.K. Sucharita, learned amicus curiae appearing for the appellant-accused submitted that the High Court has committed a grave error in not appreciating the fact that the conviction was vitiated by the non-compliance of the procedure laid down in Section 50 of the NDPS Act. Learned counsel took us to the evidence of PW1 and submitted that PW1 had not disclosed the fact that the accused had a right to be searched before a Gazetted Officer or a Magistrate, if so required by him. According to the learned counsel non-compliance of that procedure vitiated the entire proceedings initiated against the appellant. In support of her contention reliance was placed on a Judgment of this court in Vijaysingh Chandubha Jadeja v. State of Gujart (2011) 1 SCC 609.

6. Mr. Amit Lubhaya, learned counsel appearing for the State of Rajasthan, on the other hand, contended that the Sessions Court has rightly convicted the appellant and there has been a substantial compliance of the procedure laid down under Section 50 of the - NDPS Act. Learned counsel further submitted that the High Court in a well considered order has affirmed the conviction as well as the sentence imposed by the Special Judge.

7. We are in this case concerned only with the question