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2005 (4) TMI 557 - SC - CustomsWhether there was non-compliance with the mandatory requirements of Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985? Held that:- The powers to detain, search and arrest have been conferred by Sections 41(2), 42 and 43. Under Section 42(1)(d) the officer authorized may between sunrise and sunset detain and search and if he thinks proper arrest any person who he has reason to believe has committed an offence punishable under Chapter IV relating to the notified drug or substance. The question of arrest comes after a person is detained and searched and thereafter if the officer thinks proper arrest can be effected on the foundation that the officer has reason to believe that the person so detained and searched has committed an offence punishable under Chapter IV. It cannot be said that the person accompanying the officer authorized cannot say 'No' to the proposed search even if he sees no reasonable ground for search. It is the legislative trust imposed on a superior officer to act fairly and reasonably. Therefore, it is for the accused to establish prejudice which is to be done at the trial. On the facts of the case, actually these questions do not arise. The object of requiring the search to be conducted if so required before the specified Gazetted officer or nearest Magistrate is to ensure that the officers who are charged with a duty of conducting search conduct them properly and do no harm or wrong such as planting of an offending drug by any interested party and preventing fabrication of any false evidence. The provision in essence intends to act as a safeguard against vexatious search, unfair dealings and to protect and safeguard the interest of innocent persons. In order to avoid arrest and nip the investigation in the bud thereby protecting the liberty of a person, a statutory safeguard is provided in sub- section (3) of Section 50. Power has been vested in the Magistrate or the Gazetted Officer before whom the concerned person is brought on his requisition made under sub-section (2) to forthwith discharge the person without formal proceedings on his satisfaction that there is no reasonable ground for search. As a consequence, search takes place only when he declines to discharge such a person. Firstly, as noted above PW-3 arrived at the spot after the person was detained and search was proposed to be done by the officer authorized. Secondly, the respondent-accused was given the option as to whether he would like to be searched in the presence of PW-3 or the nearest magistrate. He exercised his option to be searched in the presence of PW-3. High Court's conclusions are clearly untenable. The inevitable result is that the High Court's judgment is indefensible and is set aside and that of the trial Court is restored. The accused shall surrender to custody forthwith to serve the remainder of the sentence. Appeal is allowed.
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