Case Note & Summary
This criminal appeal before the Supreme Court arose from a judgment of the High Court of Punjab and Haryana affirming the conviction of the accused under the Narcotic Drugs and Psychotropic Substances Act, 1985. The accused was charged with an offence punishable under Section 18 of the Act for unlawful possession of opium. The appeal was referred to a three-judge Bench because it raised an important question of law regarding the scope of Section 50 of the Act, which prescribes conditions for search of persons. On 1 May 1991, a police party led by the Station House Officer, Jakhal, conducted a raid on the harvesting floor of the accused near village Puran Majra based on received information. The accused was found holding a bag. He was given the option of being searched by the police officer or before a Gazetted Officer. The accused opted to be searched before a Gazetted Officer, and in the presence of such officer, the bag was found to contain opium. The trial court accepted the prosecution evidence and convicted the accused under Section 18, sentencing him to rigorous imprisonment for ten years. The High Court dismissed the appeal, noting that the evidence showed the accused was asked whether he wanted to be searched before a Gazetted Officer and, upon expressing that desire, was so searched. The only argument advanced before the Supreme Court was that an accused who is unwilling to be searched by a police officer must be given the option of being searched either before a Gazetted Officer or before a Magistrate; failure to inform the accused of this choice vitiates compliance with Section 50. The appellant relied on Saiyad Mohd. Saiyad Umar Saiyad & Ors. vs. State of Gujarat, (1995) 3 SCC 610, which emphasized that the accused must be made aware of the right or protection under Section 50 and that unless cogent evidence is produced to show awareness, compliance cannot be presumed. The Supreme Court examined the plain language of Section 50 and noted that the provision affords a safeguard to a person found in possession of illicit articles because such possession has the consequence of shifting the burden to prove non-contravention and renders the person liable to severe punishment. The Court held that the option under Section 50 is only of being searched in the presence of a senior officer, i.e., a Gazetted Officer or a Magistrate, depending upon who is conveniently available. There is no further option to choose specifically between a Gazetted Officer and a Magistrate. The word 'nearest' in Section 50 is significant because it indicates that the search must be conducted at the earliest, and once the person opts to be searched in the presence of a senior officer, it is for the police officer to conduct the search in the presence of whoever is the most conveniently available Gazetted Officer or Magistrate. The Court concurred with the view taken in Manohar Lal vs. State of Rajasthan, where a two-judge Bench held that the choice of the nearest Gazetted Officer or the nearest Magistrate has to be exercised by the officer making the search and not by the accused. Consequently, the Supreme Court found no substance in the only argument advanced by the appellant and dismissed the appeal, with no order as to costs.
Headnote
A) Criminal Law - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Search Option - The statutory option under Section 50 is limited to choosing between being searched by the officer taking the search or in the presence of a nearest available Gazetted Officer or Magistrate; the accused has no further option to choose specifically between a Gazetted Officer and a Magistrate - The court reasoned that the word 'nearest' requires expeditious search and that the choice of which senior officer is conveniently available lies with the officer making the search, not the accused - Held that informing the accused of his right to be searched before a senior officer is mandatory and if not established, possession of illicit articles is not proved (Not mentioned)
Issue of Consideration
Whether a person to be searched under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 has a right to be given an option of being searched either by a Gazetted Officer or by a Magistrate.
Final Decision
The Supreme Court dismissed the appeal, holding that Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 does not give the accused a further option to choose between a Gazetted Officer and a Magistrate. The only option is to be searched by the officer or in the presence of a senior officer, with the choice of nearest senior officer resting with the officer making the search. Conviction and sentence under Section 18 were upheld; no order as to costs.
Law Points
- Section 50 NDPS Act option limited to search by officer or in presence of senior officer
- no further choice between Gazetted Officer and Magistrate
- choice of nearest senior officer rests with officer making search
- word 'nearest' mandates early search
- accused must be informed of right under Section 50
