PETITIONER:
RAGHBIR SINGH
Vs.
RESPONDENT:
STATE OF HARYANA
DATE OF JUDGMENT: 29/01/1996
BENCH:
BHARUCHA S.P. (J)
VERMA, JAGDISH SARAN (J)
MANOHAR SUJATA V. (J)
CITATION:
1996 SCC (2) 201 1996 SCALE (1)567
ACT
HEADNOTE
JUDGMENT
JUDGMENT BHARUCHA. J.
Leave granted.
This appeal impugns the judgment and order of the High Court of Punjab & Haryana. lt comes to be neard by a bench of three Judges by reason of the fact that an order was made on 8th January, 1996, in that behalf, having regard to the fact that the question was found to be of importance, namely, whether a person to be searched under Section 50 of the Nercotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") has a right to be given an option of beinq searched either by a Gazetted Officer or by a Magistrate.
On 1st May, 1991, a police party, led by the Station House Officer, Jakhal, upon information received, conducted a raid on the harvesting floor of the accused near village Puran Majra. The accused was found holding a bag in his hand. He was given the option of being searched by the said police officer or before a Gazetted officer. The accused opted to be searched before a Gazetted officer. He was then searched in the presence of a Gazetted officer and the bag he was carrying was found to contain opium. He was charged with an offence punishable under the Act and tried. The evidence of the prosecution was accepted. The trial judge convicted 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
persons shall be conducted - (i)
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).
(3) The Gazetted Officer or the
Magistrate before whom any such
person is brought shall, if he sees
no reasonable ground for seerch,
forthwith discharge the person but
otherwise shall direct that search
be made.
(4) No female shall be searched by
anyone excepting a female.
It is submitted on behalf of the appellant that an accused may be willing to be searched by a police officer duly authorised under Section 42, but if he is not, he must be given the option of being searched either before a Gazetted officer or before a Magistrate. If the accused is not told that he can not to be searched before a Gazetted officer or before a Magistrate, the provisions of Section 50 are not satisfied.
Reliance was placed by learned counsel for the appellant upon the decision in Saiyad Mohd. Saiyad Umar Saiyad & Ors. vs. State of Gujarat, (1995) 3 S.C.C. 610 (which was delivered by one of us, Bharucha, J., on behalf of a Bench of three Judges). It was submitted 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
Gazetted Officer or a Magistrate
and that the person had not chosen
to so demand. If no evidence to
this effect is given the court must
assume that the person to be
searched was not informed of the
protection the law gave him and
must find that the possession of
illicit articles under the NDPS Act
wss not established." Emphasis was laid by learned counsel for the appellant upon paragraph 10 wherein it was said :
"(C)ourts dealing with offences
under the NDPS Act should be very
careful to see that it is
established to their satisfaction
that the accused has been informed
by the officer concerned that he
had a right to choose to be
searched before a Gazetted Officer
or a Magistrate. lt need hardly be
emphasised that the accused must be
made aware of this right or
protection granted by the statute
and unless cogent evidence is
produced to show that he was made
aware of such right or protection
there would be no question of
presuming that the requirements of
Section 50 were complled with".
The very question that is referred to us came to be considered by a Bench of two learned Judges on 22nd January, 1996 in Criminal M.P. No.138 of 1996 in S.L.P. (Crl.) No.184 of 1996, Manohar Lal vs. State of Rajasthan. One of us (Verma, J.), speaking for the Bench, held :
"It is clear from Section 50 of the
N.D.P.S. Act that the option given
thereby to the accused is only to
choose whether he would like to be
searched by the officer taking 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."
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 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 Gazetted officer or Magistrate.
In the result, we find no substance in the only argument advanced before us on behalf of the appellant.
The appeal is dismissed. There shall be no order as to costs.