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2013 (1) TMI 306 - SC - Central ExciseNDPS Act - Whether the empowered officer acting under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 'NDPS Act’ is legally obliged to apprise the accused of his right to be searched before a Gazetted Officer or a Magistrate? - Held that:- Statement of PW1, the officer who had conducted the search on the person of the appellant, would clearly indicate that he had only informed the accused that he could be searched before any Magistrate or a Gazetted Officer if he so wished. The fact that the accused person has a right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or a Magistrate was not made known to him. There is an obligation on the part of the empowered officer to inform the accused or the suspect of the existence of such a right to be searched before a Gazetted Officer or a Magistrate, if so required by him. Only if the suspect does not choose to exercise the right in spite of apprising him of his right, the empowered officer could conduct the search on the body of the person. In this connection, also examining the general maxim “ignorantia juris non excusat” and whether in such a situation the accused could take a defence that he was unaware of the procedure laid down in Section 50 of the NDPS Act. Ignorance does not normally afford any defence under the criminal law, since a person is presumed to know the law. Thus noticing this fact legislature in its wisdom imposed an obligation on the authorized officer acting under Section 50 of the NDPS Act to inform the suspect of his right under Section 50 to be searched in the presence of a Gazetted Officer or a Magistrate warranting strict compliance of that procedure - non-compliance of this mandatory procedure has vitiated the entire proceedings initiated against the accused/appellant - Special Court as well as the High Court has committed an error in not properly appreciating the scope of Section 50 of the NDPS Act. The appeal is, therefore, allowed & conviction and sentence imposed by the Sessions Court and affirmed by the High Court are set aside & accused-appellant, who is in jail, to be released forthwith.
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