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TMI Blog2000 (8) TMI 1096X X X X Extracts X X X X X X X X Extracts X X X X ..... firmed the conviction and sentence and hence the present appeal. The prosecution case in nutshell is that on receipt of certain information that the accused is dealing with narcotics, the empowered officer called the panch witnesses and raided the house of the accused. While the accused was sitting on a cot, the person of the accused was searched and from his pant pocket, 9 gms. of Charas was recovered, which later on was established as Charas. The factum of recovery of Charas from the pant of the accused is established through the panch witness PW1 and the seizure list Exh.6 and Exh.17 but the said witness PW1 in cross-examination, candidly stated that the accused himself had requested for being taken to the Magistrate for being searched but the Police had declared that it was not necessary. PW2, the senior Police Officer, also was examined in this case and he gave out the details about the raid and seizure as well as drawing of the Panchnama. In assailing the conviction, the learned counsel for the appellant contended that the mandatory requirements of Section 50 of the NDPS Act have not been complied with inasmuch as notwithstanding the fact that the accused himself requested f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed. (2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under Chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 set and sun rise after recording the grounds of his belief. (2)Where an officer takes down any information in writing under sub-section(1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior. Section 50. Conditions under which search of persons shall be conducted(1)When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2)If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section(1). ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween an empowered officer and a search made by an authorised officer. But the said argument is devoid of any substance, since Section 42 itself also speaks of search to be made by an officer, as is empowered by a general or special order by the Central Government or as is empowered by a general or special order by the State Government. A combined reading of the provisions of Section 42 and Section 50 would make it crystal clear that whenever a search of a person is about to be made on the basis of personal knowledge or information received in that behalf, then if the person to be searched requires to be taken to a gazetted officer or the nearest Magistrate, the same must be complied with and failure to compliance of the same would constitute an infraction of the requirements of the provision of Section 50, which would ultimately vitiate the conviction. For the purpose of complying with the provisions of Section 50, no differentiation can be made on a plain reading of the language used in Section 50, depending upon the officer who is going to search the person concerned. In our considered opinion, since the search is about to be effected on the basis of any prior information or pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a Magistrate. We endorse the finding in Balbir Singh case that the provisions in this behalf are mandatory and the language thereof obliges the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate. In the aforesaid judgment, not only the decision of this Court in Balbir Singhs case to the effect that the provisions of Section 50 are mandatory, has been endorsed but also, it further indicates that it obliges the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate. In the case in hand, the evidence of PW1 indicates that even though the obligation of the officer had not been discharged by way of informing the accused of his right to demand that the search be conducted in the presence of a gazetted officer or a Magistrate but the accused himself wanted to be searched before another gazetted officer or a Magistrate but that was not acceded to. It is not necessary to notice several decisions of this Court, holding the provisions of Section 50 to be mandatory and we would n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 person concerned 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 prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search 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 conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act. In view of the aforesaid conclusions of the Constitution Bench, the submission of Mr. M.N. Shroff, appearing for the State-respondent, that the requirement of compliance of Section 50 will not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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