TMI Blog2002 (4) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... e been fulfilled on his (PW1) asking the accused "whether I should search him in the presence of senior officers or Gazetted officer". The accused was required to be apprised of his right conferred under Section 50 giving him the option to search being made in presence of gazetted officer or the Magistrate. The accused is not shown to have been apprised of his right nor any option offered to him for search being conducted in the presence of the Magistrate. We are of the firm opinion that the provisions of sub-section (2) of Section 42 and the mandate of Section 50 were not complied with by the prosecution which rendered the case as not established. In view of the violation of the mandatory provisions of the Act, the appellant was entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a jeep. on reaching T.C. Junction at about 8.45 a.m. he saw the accused carelessly walking from the bus shelter towards Kathu Parambu side. Allegedly seeing him in suspicious condition, the Sub Inspector along with his party approached him and after disclosing his identity searched the person of the accused in presence of witnesses. It was found that inside the fold of Dhoti, which the appellant was wearing, opium had been concealed in a polythene bag. As he was found unauthorisedly possessing the opium, he was arrested and the opium seized was weighed to be 11 gms. Out of that 2 gms. each were separated and two samples were roped in plastic paper. On enquiry from the accused whether he would like to meet any higher official or Gazetted Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sun s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 42 and 50 of the Act. A Constitution Bench of this Court in State of Punjab vs. Baldev Singh [1999 (6) SCC 172] has held that while conducting search and seizure in addition to the safeguards provided under the Code of Criminal Procedure, the safeguards provided under the Act are also required to be followed. The harsh provisions of the Act cast a duty upon the prosecution to strictly follow the procedure and compliance of the safeguards. In that case the Court observed: "Prior to the passing of the NDPS Act, 1985 control over narcotic drugs was being generally exercised through certain Central enactments though some of the States also had enacted certain statutes with a view to deal with illicit traffic in drugs. The Opium act, 1857 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther offences. The NDPS Act, 1985 provides stringent penalties for various offence. Enhanced penalties are prescribed for the second and subsequent offences. The NDPS Act, 1985 was amended in 1988 w.e.f. 29.5.1989. Minimum punishment of 10 years' imprisonment which may extend upto 20 and a minimum fine of Rs.1 lakh which may extend up to Rs.2 lakhs have been provided for most of the offences under the NDPS Act, 1985. For the second and subsequent offices, minimum punishment of imprisonment is 15 years which may extend to 30 years while minimum fine is Rs.1.5 lakhs which may extent to Rs.3 lakhs. Section 31(a) of the Act, which was inserted by the Amendment Act of 1988, has even provided that for certain offences, after previous convictions, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. If the empowered officer fails to comply with the requirements of the Section, the prosecution is to suffer for the consequences. The legitimacy of the judicial process may come under the cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. In State of Punjab vs. Balbir Singh [1994(3) SCC 299] it was held that under Section 42(2) the empowered officer who takes down any information in writing or records ..... X X X X Extracts X X X X X X X X Extracts X X X X
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