2013 (1) TMI 306

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....ccused of his right to be searched before a Gazetted Officer or a Magistrate and whether such a procedure is mandatory under the provisions of the NDPS Act. 2. PW1, Additional Superintendent of Police (Crimes), Jaipur City, Jaipur got secret information that on 25.2.2001 one Ashok Kumar, the appellant herein would be selling smack to a person near Nandipur under Bridge. After completing the formalities PW1 along with two independent witnesses reached near Nandpuri under Bridge. At about 4.55 P.M. a person came on a scooter, who was stopped by the police force and was questioned. Exhibit P-3, notice was given by PW1 under Section 50 of the NDPS Act to the appellant to get himself searched either before a Magistrate or a Gazetted officer. ....

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....eal No.1157 of 2003 before the High Court under Section 374 of the Code of Criminal Procedure. The appeal was, however, rejected by the High Court on 9.2.2007 against which this appeal has been preferred by way of special leave. 5. Ms. C.K. Sucharita, learned amicus curiae appearing for the appellant- accused submitted that the High Court has committed a grave error in not appreciating the fact that the conviction was vitiated by the non- compliance of the procedure laid down in Section 50 of the NDPS Act. Learned counsel took us to the evidence of PW1 and submitted that PW1 had not disclosed the fact that the accused had a right to be searched before a Gazetted Officer or a Magistrate, if so required by him. According to the learned cou....

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....strate, if so required by him and this mandatory provision requires strict compliance. The suspect may or may not choose to exercise the right provided to him under the said provision, but so far as the officer concerned, an obligation is cast on him under Section 50 of the NDPS Act to apprise the person of his right to be searched before a Gazetted Officer or a Magistrate. The question, as to whether this procedure has been complied with or not, in this case the deposition of PW1 assumes importance, which reads as follows:     "He was apprised while telling the reason of being searched that he could be searched before any Magistrate or any Gazetted Officer if he wished. He gave his consent in written and said that I have ....