Manohar Lal
v.
State Of Rajasthan
(Supreme Court Of India)
Criminal Misc. Petition No. 138 Of 1996 In Slp (Crl.) No. 184 Of 1996 | 22-01-1996
1. The submission of learned counsel for the petitioner is that there is non-compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act") which renders the conviction of the petitioner illegal. The learned counsel submitted, placing reliance on the decision of this Court in Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat, that the burden is on the prosecution to prove due compliance of Section 50 of the NDPS Act. It is sufficient to say that in the present case, the High Court has gone into this question and recorded a clear finding that there was compliance of Section 50 of the NDPS Act inasmuch as the accused was given the option specified in the provision and on exercise of that option by him, he was searched in the presence of a Gazetted Officer.
2. Learned counsel for the petitioner further submitted that another requirement of Section 50 of the NDPS Act is that the accused should also be given the option to choose whether he wanted to be searched in the presence of a Gazetted Officer or in the presence of a Magistrate. It is submitted that this further option was not given to the petitioner in the present case. We are unable to accept such a construction of Section 50 of the NDPS Act. The provision only requires the option to be given to the accused to say whether he would like to be searched in the presence of a Gazetted Officer or a Magistrate; and on exercise of that option by the accused, it is for the officer concerned to have the search made in the presence of the nearest Gazetted Officer or the nearest Magistrate whosoever is conveniently available for the purpose in order to avoid undue delay in completion of that exercise. It is clear from Section 50 of the NDPS Act that the option given thereby to the accused is only to choose whether he would like to be searched by the officer making the search or in the presence of the nearest available 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.
3. Learned counsel also referred to an order dated 8-1-1996 made in Raghbir Singh v. State of Haryana [SLP (Crl.) No. 2546 of 1995, decided on 8-1-1996] wherein, according to him, a similar question has been referred to for decision by a three-Judge Bench on the basis that no decision so far has decided the question involved in the second submission made by him. It is sufficient to say that there being no decision taking a contrary view, and in our opinion, the construction being plain, it is unnecessary for us to refer this case to a three-Judge Bench.
4. Special leave petition is dismissed.
Advocates List
For the Appearing Parties ----
For Petitioner
- Shekhar Naphade
- Mahesh Agrawal
- Tarun Dua
For Respondent
- S. Vani
- B. Sunita Rao
- Sushil Kumar Pathak
Bench List
HON'BLE MR. JUSTICE B. N. KIRPAL
HON'BLE MR. JUSTICE J. S. VERMA
Eq Citation
(1996) 11 SCC 391
[1996] 1 SCR 837
AIR 1996 SC 2880
1996 CRILJ 1367
1996 1 AD (SC) 741
1996 (1) ALD (CRL) 180
1996 (1) RCR (CRIMINAL) 660
1996 (62) ECR 721 (SC)
1996 (1) CRIMES 54
4 (1996) CCR 9
JT 1996 (1) SC 480
1996 (2) SCJ 80
33 (1996) ACC 257
1996 (1) KLT 24 (SN)
LQ/SC/1996/168
HeadNote
Criminal Procedure Code, 1973 — S. 50 — Narcotic Drugs and Psychotropic Substances Act, 1985, S. 50 — Search of accused — Right of accused to choose — Scope of — Held, S. 50 of NDPS Act only requires option to be given to accused to say whether he would like to be searched in presence of Gazetted Officer or Magistrate and on exercise of that option by accused it is for officer concerned to have search made in presence of nearest Gazetted Officer or nearest Magistrate whosoever is conveniently available for purpose in order to avoid undue delay in completion of that exercise — Choice of nearest Gazetted Officer or nearest Magistrate has to be exercised by officer making search and not by accused — Hence, there was no need to refer matter to three-Judge Bench — Narcotic Drugs and Psychotropic Substances Act, 1985, S. 50 (Paras 1 to 3)