TMI Blog1996 (1) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... the presence of a senior officer. The senior officer may be a Gazetted officer or a Magistrate, depending upon who is conveniently available. The option under Section 50 of the Aet, as it plainly reads, is only of being searched in the presence of such senior officer. There is no further option of being searched in the presence of either a Gazetted Officer or of being searched in the presence of a Magistrate. The use of the word 'nearest' in Section 50 is relevant. The search has to be ccnducted at the earliest and, once the person to be searched opts to be searched in the presence of such senior officer, it is for the police officer who is to conduct the search to conduct it in the presence of whoever is the most conveniently available Ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icted the accused of the offence punishable under Section 18 of the said Act and he was sentenced to undergo rigorous imprisonment for a term of ten years. The High Court, by the order that is impugned before us, upheld the conviction and sentence. It noted that the appellant had contended that the provisions of Section 50 had not been complied with, but it found that the evidence showed that he had been asked whether he wanted to be searched before a Gazetted officer and, when he expressed that desire, he was so searched. The conviction and sentence was affirmed. The only argument which is advanced on behalf of the appellant before us is that indicated in the referral order. Section 50 reads thus : Conditions under which sear=h of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that the observations therein supported the aforesaid submission. In paragraph 7 of the judgment this was said : Having regard to the object for which the provisions of Section 50 have been introduced into the NDPS Act and when the language thereof obliges the officer concerned to inform the person to be searched of his right to be searched in the presence of a Gazetted Officer or a Magistrate, there is no room for drawing a presumption under Section 114, Illustration (e) of the Indian Evidence Act, 1872 ............Very relevant in this behalf is the testimony of the officer conducting the search that he had informed the person to be searched that he was entitled to demand that the search be carried out in the presence of a Gazett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able Gazetted Officer or the nearest available Magistrate. The choice of the nearest -Gazetted Officer or the nearest Magistrate has to be exercised by the officer making the search and not by the accused. We concur with the view taken in Manohar Lal's case. Finding a person to be in possession of articles which are illicit under the provisions of the Act has the consequence of requiring him to prove that he was not in contravention of its provisions and it renders him liable to severe punishment. It is, therefore, that the Act affords the person to be searched a safeguard. He may require the search to be conducted in the presence of a senior officer. The senior officer may be a Gazetted officer or a Magistrate, depending upon who i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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