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TMI Blog2015 (9) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... e u/S 50 NDPS Act was given to him. The bag was taken from the hand of the accused and on checking the bag 1 kg 600 gram ganja was found in it. IO completed the other formalities under the NDPS Act and sent the ruqqa to police station through constable Dilbagh for the registration of the case. Accused was arrested and sent up for trial. (2) On the basis of the ruqqa FIR bearing No.429/02 was registered at police station Sadar Bazar and investigation went underway. After completion of the investigation Challan u/S 20-61-85 NDPS Act was prepared and filed in court. (3) Copies of challan statement of witnesses and other documents were supplied to accused. (4) After hearing arguments on charge a prima facie case was found to try the accused for the offence u/S 20 NDPS Act vide order dated 19.2.2003 and accordingly a charge u/S 20 NDPS Act was framed against the accused to which accused pleaded not guilty and claimed trial. (5) In order to prove the guilt of the accused the prosecution examined as many as 10 witnesses. Counsel for the appellant submits that the conclusions drawn by the learned Trial Court are erroneous and against the law. Ms. Verma contends that there was no indep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to Section 50 of the Act and the insertion of sub-section 5, the mandate of Section 50(2) of the Act has not been nullified, and the obligation upon the searching officer to inform the person searched of his rights still remains. In other words, offering the option to take the person to be searched before a Gazetted Officer or a Magistrate as contemplated under the provisions of this Act, should be unambiguous and definite and should inform the suspect of his statutory safeguards. xxxxxx It is a settled canon of criminal jurisprudence that when a safeguard or a right is provided, favouring the accused, compliance thereto should be strictly construed. As already held by the Constitution Bench in the case of Vijaysinh Chandubha Jadeja (supra), the theory of „substantial compliance‟ would not be applicable to such situations, particularly where the punishment provided is very harsh and is likely to cause serious prejudices against the suspect. The safeguard cannot be treated as a formality, but it must be construed in its proper perspective, compliance thereof must be ensured. The law has provided a right to the accused, and makes it obligatory upon the officer conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system - that he is not in the presence of persons acting solely in his interest." When such is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred under Section 50 in the context is all the more important and valuable. Therefore it is to be taken as an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate. Thus the provisions of Section 50 are mandatory." 16. If the ratio of the said decision had been properly understood, the flaw committed by the trial Court and as confirmed by the High Court in our considered opinion would not have arisen. The distinct feature in the case on hand was that on the date of occurrence i.e. on 04.04.1996 at 00.15 AM, the police party headed by P.W.6, accosted a tractor trolley coming from the side of village Ugrah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mar (supra), clearly highlight the legal requirement of compliance of Section 50 in its true spirit. It will have to be stated that such compliance of the requirement under Section 50 of holding of a search and seizure in the presence of Gazetted officer or a Magistrate, cannot be an empty formality. In other words, the offer to the person to be searched in the presence of a Gazetted officer or a Magistrate, should really serve the purpose of ensuring that there was every bona fide effort taken by the prosecution to bring forth the grave offence of possession of narcotic substance and proceed against the person by way of prosecution and thereby establish the truth before the appropriate judicial forum. In the same breath such a course of compliance of Section 50 would also enable the person accused of such a grave offence to be convinced that the presence of such an independent Gazetted officer or a Magistrate would also enable the person proceeded against to demonstrate that there was no necessity for holding any search on him and thereby persuade the concerned Gazetted officer or Magistrate to protect his fundamental right of freedom, from being unlawfully proceeded against. In o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d officer or a Magistrate and communicating to him in clear words that he has a right in law to be searched in the presence of a Magistrate or a gazetted officer. In this case, a mere offer was made to the appellant that in case if he so desires, his search may be conducted in presence of a Gazetted Officer or a Magistrate. Thus a mere offer would not satisfy the mandatory ingredients of section 50 of the NDPS Act. In my view the judgment in the case of Ram Avatar (Supra) is fully applicable to the facts of this case, as a similar offer was given to Ram Avtar and the Apex Court held that such an offer did not comply with the mandatory requirement of section 50 of the NDPS Act. It may also be noticed that in this case the learned Trial Court had opined in para 45 of the judgment that since the recovery was made from a bag which the appellant was carrying in his right hand, Section 50 would not apply. In my view Section 50 would be applicable even in those cases where the recovery was made other than from the person of a person. In this case also a notice was given to the appellant. In Gurjant Singh‟s case (supra) a person was coming on a tractor loaded with three gunny bags. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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