Strict compliance with Section 50 of the NDPS Act is mandatory, and failure to apprise the accused of their right to be searched before a Gazetted Officer or a Magistrate leads to non-compliance with the provision.

JUDGMENT

M. S. Jawalkar, J. - The present Appeal is filed by the appellant being aggrieved by the judgment and order convicting the appellant in Special Criminal Case No. 41/2014 (NDPS) by Sessions Judge, North Goa, Panaji vide order dated 19.08.2017. Accused was found guilty of the offence punishable under Section 21(b) of the NDPS Act and was awarded rigorous imprisonment for two years and payment of fine of Rs.50,000/-.

2. The charge against the accused was that on 17.02.2014, between 14:30 hours to 17:30 hours, near St. Antony's Chapel at St. Anthony Prias waddo, Anjuna, Goa, the accused was found in illegal possession of narcotic drug known as cocaine weighing 4.90 grams worth Rs.50,000/-.

3. The Appeal is filed on the ground that the learned Sessions Judge showed complete non application of mind and also failed to consider written arguments. It is vehemently argued by the learned Advocate T. George John that mandatory provision of Section 50 of the NDPS is not complied with. So also, there are omissions in the deposition of the witnesses.

4. He relied on citation Arif Khan alias Agha Khan Vs. State of Uttarakhand, (2018) AIR SC 2123 and submitted that it is mandatory to search a suspect in presence of a Magistrate or Gazetted Officer. He also relied on the judgment of this Court in Criminal Appeal No. 57/2016 dated 12.10.2020 in the case of Ivan Miguel Vs. State & Another, wherein this Court after relying on the decision in the case of Arif Khan alias Agha Khan (supra) allowed the Appeal and the order of conviction was set aside.

5. As against this, the learned Additional Public Prosecutor relied on the judgment of the Constitution Bench of the Hon'ble Apex Court in the case of Vijaysinh Chandubha Jadeja Vs. State of Gujarat, (2011) 1 SCC 609 and the following decisions of this Court:

(a) Criminal Appeal No. 82/2018 decided on 04.09.2020 in the case of Mr. Raymond Locke Vs. the State of Goa;

(b) Criminal Appeal No. 9/2017 decided on 17.09.2020 in the case of Kushal Puri Vs. State & Another and

(c) Criminal Appeal No. 57/2016 decided on 12.10.2020 in the case of Ivan Miguel Vs. State & Another.

6. Heard learned Counsel for appellant as well as learned APP Shri Pravin Faldessai for the respondent-State. The main ground in appeal appears to be that mandatory provision under Section 50 of NDPS Act, is not complied by the Investigating Officer and, on that count only, the order is liable to be quashed and set aside.

7. Learned Counsel for the appellant relied on Arif Khan (supra) in support of his contention. On perusal of the said citation, it clearly appears that before proceeding to consider the facts, the Apex Court referred Vijay Sinh Chandubha Jadeja (supra) for referring requirements of Section 50 of the NDPS Act, which are mandatory. It is held that it is imperative on the part of the Police Officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a Gazetted Officer or a Magistrate. It is held that it is equally mandatory on the part of the authorised officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate if so this requires a strict compliance. It is ruled that the suspect person may or may not chose to exercise the right provided to him under Section 50 of the NDPS Act but, so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a Gazetted Officer or before a Magistrate. The Hon'ble Apex Court in the matter of Arif Khan (supra), examined the question arising in the case before the Hon'ble Apex Court keeping in view the aforementioned principle of law laid down by the Apex Court in Jadeja's (supra) case. Thus, mandatory provision is to apprise the accused about his right to be searched before a Gazetted Officer or a Magistrate. Thus, after considering the peculiar facts that the raiding party intercepted the