TaxTMI 
TaxTMI 
1995 (4) TMI 136
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....rous imprisonment for a term of ten years and fine of Rupees one lakh, in default of payment of the fine, rigorous imprisonment for a further term of two years. It upheld also the conviction of the appellants under the provisions of Sections 65 and 66 of the Bombay Prohibition Act, 1949, in respect whereof no separate punishment had been imposed. 3. It was the case of the prosecution that on 18th October, 1986, Police Sub-Inspectors Rathod and Rana received information that the first appellant was doing the business of selling `charas' in Vagharivad, opposite Renbasera, Ahmedabad. Along with other police personnel, PSIs Rathod and Rana raided the area. Upon search 55 grams of `charas' was found from the first appellant and 10 grams fr....
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....ed the judgment of this Court in the case of State of Punjab v. Balbir Singh - 1994 (3) SCC 299, and observed that it was an imperative requirement that a police officer intending to search a person for the possession of articles covered by the NDPS Act should inform him that he had a right to be searched, if he so chose, in the presence of a Gazetted Officer or a Magistrate. The High Court then stated : "In nutshell we may say that both PSI Rathod and PSI Rana have stated almost each and everything in their evidence regarding the information received by them, calling for the Panchas going to the place of offence, searching the accused and on search finding of muddamal "Charas" of 55 grams from accused No. 1 and 10 grams each from accused ....
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....equires, 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." 5. This Court in the case of Balbir Singh (ibid) held : "18.......In the context in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings w....
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.... Court is empowered to impose a fine exceeding Rupees two lakhs for reasons to be recorded in its judgment. Section 54 of the NDPS Act shifts the onus of proving his innocence upon the accused; it states that in trials under the NDPS Act it may be presumed, unless and until the contrary is proved, that an accused has committed an offence under it in respect of the articles covered by it "for the possession of which he fails to account satisfactorily". Having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable, the legislature has enacted the safeguard contained in Section 50. To obviate any....
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....ence of the search is given all that transpired in its connection must be stated. 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 was not established. 8. We are unable to share the High Court's view that in cases under the NDPS Act it is the duty of the court to raise a presumpti....
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....ery careful to see that it is established to their satisfaction that the accused has been informed by the concerned officer that he had a right to choose to be searched before a Gazetted Officer or a Magistrate. It 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 complied with. Instructions in this behalf need to be issued so that investigation officers take care to comply with the statutory requirement and drug peddlers do not go scot free due to non-compliance thereof. Such instructions would be of ....