Mandatory NDPS search safeguards require proof that the accused was told of the right to search before a Magistrate or Gazetted Officer.

In NDPS prosecutions, the prosecution must affirmatively prove that the accused was informed of the statutory right to be searched before a Magistrate or Gazetted Officer under Section 50 before the search is conducted. Compliance with this mandatory safeguard cannot be presumed from silence in the record, and the evidence must clearly show that the right was communicated. Where the search witness does not establish such notice and the High Court has made no clear finding on compliance, the conviction and sentence cannot be sustained.

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Issues: Whether the conviction could be sustained when the accused was not informed of the right to be searched in the presence of a Magistrate or a Gazetted Officer under the search safeguards of the NDPS Act.

Analysis: The record did not show any clear finding by the High Court on compliance with the search safeguard. The evidence of the search witness was silent on whether the accused was told of the right to demand search before a Magistrate or a Gazetted Officer. The requirement is mandatory, and compliance must be affirmatively shown from the evidence; no presumption can be drawn in its favour.

Conclusion: The mandatory requirement was not complied with, and the conviction and sentence could not be sustained.

Ratio Decidendi: In prosecutions under the NDPS Act, the prosecution must affirmatively prove that the person to be searched was informed of the statutory right under Section 50 before the search is conducted.

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