TMI Blog2012 (4) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... f payment of fine, they were directed to undergo simple imprisonment for six months each. 3. According to the prosecution, on 5/1/2001, PW-3 CI Koteswara Rao on receiving reliable information about illegal sale of Ganja at Koneru Bazar, Chenchupeta, Tenali, proceeded to Koneru Bazar along with PW-1 PC Shaik Khasim, PW-2 SI Nageswara Rao and one other constable. They noticed the appellant, A1 and A2 sitting under a bridge. On seeing them, the appellant, A1 and A2 tried to run away. PW-3 CI Koteswara Rao and his team apprehended them. The prosecution story further goes on to say that the appellant, A1 and A2 revealed their names. On questioning, they stated that they were carrying Ganja packets in their pockets. It is further the case of the prosecution that PW-3 CI Koteswara Rao asked them whether they wanted any other gazetted officer for their search and seizure in addition to him to which they replied that they did not want any other gazetted officer and checking by the Circle Inspector of Police was sufficient. In the search, five Ganja packets were recovered from A1, six Ganja packets were recovered from A2 and four Ganja packets were recovered from the appellant. A1, A2 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucted before a gazetted officer or a Magistrate. Needless to say that a suspect may insist on the presence of a gazetted officer or a Magistrate so as to introduce transparency in the search. 6. In State of Punjab v. Baldev Singh ((1999) 6 SCC 172) the Constitution Bench of this court was considering the question whether compliance of Section 50 of the NDPS Act was mandatory and if it is so, what is the effect in case of breach thereof. After considering the relevant judgments on the point, the Constitution Bench drew the following conclusions. (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing; (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused; (3) That a search made, by an empowered officer, on p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 50 of 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. The Constitution Bench held that although Baldev Singh did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 makes it imperative for the empowered officer to inform the person concerned about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to inform the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the convictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A1 and A2. He has corroborated PW-1 PC Shaik Khasim as regards the apprehension of the appellant, A1 and A2. He has stated that before conducting the search, the Circle Inspector of Police asked the appellant, A1 and A2 about the intention to have another gazetted officer and they replied that they do not want any other gazetted officer for their search and seizure . According to this witness, thereafter, the search was conducted and Ganja packets were recovered from their possession. From the evidence of PW-1 and PW-2, it is clear that the appellant, A1 and A2 were not communicated their right to have search conducted in the presence of a Magistrate or a gazetted officer. 10. At the relevant time, PW-3 CI Koteswara Rao was working as Inspector of Police. It is this witness who had received information about the illegal sale of Ganja at Koneru Bazar. On receiving the information, he proceeded to Koneru Bazar along with PW-1, PW-2 and another police constable. He has corroborated PW-1 and PW-2 as regards the apprehension of the appellant, A1 and A2. He has stated that the appellant, A1 and A2 revealed their names and identity. According to him, A1 produced packets containing Gan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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