Point in Issue :
Whether provision under Section 50 of the Act 1950 is mandatory and requires strict compliance.

Headnote:Head Note :
       Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985) — Sections 41(1), 41(3), 42, 43 and 50 — Provision under — Casting duty on empowered officer — Informing the suspect of his right to be searched in presence of a Gazetted Officer or a Magistrate — Mere substantial compliance theory can not be applied — Provision is mandatory and require a strict compliance.
       Held :
       Court is of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. Court has no hesitation in holding that in so far as the obligation of the authorised officer under Sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed in Re Presidential Poll, 14 (1974) 2 SCC 33. it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. “The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole.” We are of the opinion that the concept of “substantial compliance” with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez vs. State of Goa, (2000) 1 SCC 707 and Prabha Shankar Dubey vs. State of M.P. (2004) 2 SCC 56 is neither borne out from the language of Sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh’s case (Supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. [Para 22]
       Court also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well. [Para 22]
       Law Laid Down :
       Provision under casting duty on empowered officer of informing suspect of his right is mandatory and requires strict compliance.
       Case Law Analysis :
       Joseph Fernandez vs. State of Goa, (2000) 1 SCC 707 [Para 2];; Prabha Shankar Dubey vs. State of M.P., (2004) 2 SCC 56 [Para 2].—Distinguished
       Krishna Kanwar (Smt) alias Thakuraeen vs. State of Rajasthan, (2004) 2 SCC 608 [Para 2];; State of Punjab vs. Baldev Singh, (1999) 6 SCC 172 [Para 2];; Beckodan Abdul Rahiman vs. State of Kerala, (2002) 4 SCC 229 [Para 6];; State of Punjab vs. Balbir Singh, (1994) 3 SCC 299;; Saiyad Mohd. Saiyad Umar Saiyad & Ors. vs. State of Gujarat, (1995) 3 SCC 610 [Para 10];; Ali Mustaffa Abdul Rahman Moosa vs. State of Kerala, (1994) 6 SCC 569 [Para 10].—Relied on

Judgment

D.K. Jain, J.—The short question arising for consideration in this batch of appeals is whether Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act”) casts a duty on the empowered officer to ‘inform’ the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section?

2. When these appeals came up for consideration before a bench of three Judges, it was noticed that there was a divergence of opinion between the decisions of this Court in the case of Joseph Fernandez vs. State of Goa, (2000) 1 SCC 707. Prabha Shankar Dubey vs. State of M.P. (2004) 2 SCC 56. on the one hand and Krishna Kanwar (Smt) alias Thakuraeen vs. State of Rajasthan,(2004) 2 SCC 608 on the other, with regard to the dictum laid down by the Constitution Bench of this Court in State of Punjab vs. Baldev Singh, (1999) 6 SCC 172 in particular regarding the question whether before conducting search, the concerned police officer is merely required to ask the suspect whether he would like to be produced before the Magistrate or a Gazetted Officer for the purpose of search or is the suspect required to be made aware of the existence of his right in that behalf under the law. It would be expedient to extract the relevant portion of the order:—

“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 the case Joseph Fernandez vs. State of Goa, 2001 (1) SCC p. 707, a Bench of three Hon’ble Judges held that even when the searching officer informed him that “if you wish you may be searched in the presence 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 of the mandatory provisions contained in Section 50 of the NDPS Act. In another decision of this Court in Prabha Shankar Dubey vs. State of M.P. 2004(2) SCC p. 56, the following information was conveyed to the accused: “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 a gazetted officer or by a Magistrate”. This was held to be substantial compliance of Section 50 of the NDPS Act. In Krishan Kanwar (Smt.) Alias Thakuraeen vs. State of Rajasthan, 2004(2) SCC p. 608, 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 “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 requirement 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 a straitjacket formula.

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Thus, in a way, it all depends on the oral evidence of the officer who conducts search, in case nothing is mentioned in

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2010 Supreme(Guj) 384

Point in Issue :Whether provision under Section 50 of the Act 1950 is mandatory and requires strict compliance.

Cases Referred (5)

Point in Issue :
Whether provision under Section 50 of the Act 1950 is mandatory and requires strict compliance.