REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 943 OF 2005

VIJAYSINH CHANDUBHA JADEJA

—

APPELLANT (S)

VERSUS

STATE OF GUJARAT

—

RESPONDENT (S)

WITH

CRIMINAL APPEAL NO.974 OF 2003 &

CRIMINAL APPEAL NO.1809 OF 2009

J U D G M E N T

D.K. JAIN, J.:

1. 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 Goa¹, Prabha Shankar Dubey Vs. State of M.P.² on the one hand

and Krishna Kanwar (Smt) alias Thakuraeen Vs. State of Rajasthan³

on the other, with regard to the dictum laid down by the Constitution

Bench of this Court in State of Punjab Vs. Baldev Singh⁴, 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

1 (2000) 1 SCC 707

2 (2004) 2 SCC 56

3 (2004) 2 SCC 608

4 (1999) 6 SCC 172

2

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 cann