TaxTMI 
TaxTMI 
2005 (4) TMI 557
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....ces, rushed to the place pointed out by the informant and apprehended the accused respondent. Satyendra Singh, Dy. S.P. (PW- 3) also reached there. Subsequently, being of the suspicion that accused respondent was in possession of contraband, the SHO informed him of his right to have his search conducted either in presence of Shri Satyendra Singh, Dy. S.P. (PW-3) who was a Gazetted Officer and happened to be present there or in the presence of any magistrate. The accused consented for his search to be conducted in the presence of the Dy. S.P. (PW-3). On being searched, 570 grams of opium was recovered from his possession in the presence of Ramesh Chand (PW-5) and Rajendra Kumar (PW-6). Out of the recovered opium, a sample weighing 30 grams was taken and was sealed. The remaining opium was also sealed. The accused was accordingly arrested vide arrest memo Ex.P-5 and memo of recovery was prepared. The SHO, thereafter, registered a case vide FIR Ex.P-4 and deposited the recovered opium in the 'Malkhana'. During investigation, the police recorded the statement of witnesses and sent the sample to the Forensic Science Laboratory. On chemical examination, the sample contained in th....
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....ccused should have taken to some other Gazetted Officer. Only question to be adjudicated is the alleged non-compliance of Section 50. The said provision reads as follows: "50. Conditions under which search of persons shall be conducted. - (1) 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 search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female." A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag, or premise....
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.... (2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused. (3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act. (5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the court on the basis of the evidence led at the trial. Finding on that issue, one way or the other would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, tha....
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....er: "8. The very question that is referred to us came to be considered by a Bench of two learned Judges on 22.1.1996 in Manohar Lal v. State of Rajasthan (Crl.M.P.No.138/96 in SLP(Crl.)No.184/1996). One of us (Verma, J), speaking for the Bench, held: "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". 9. We concur with the view taken in Manohar Lal's case supra. 10. 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 M....
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....ly available. That being the purpose of the Act, if any Gazetted Officer even if he is a police officer of a particular rank is present nearby when the accused is detained, the accused may be asked as to whether he would like to be searched in the presence of that officer or a Magistrate. The foundation of the stand taken by the accused-respondent which found favour with the High Court is that if he is a member of the raiding party the requirements of Section 50 are not met. This is not legally tenable, and in any event on the facts of the present case it was not so because PW-3, the Deputy Superintendent of Police reached the spot after the person was detained. As noted above, in Raghbir Singh's case (supra) the option given 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. In the instant case all the options were made known to the accused and he himself opted to be searched in the pr....
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.... of the Act was vitiated. The plea was repelled relying on the decision of this Court in State represented by Inspector of Police, Vigilance and Anti-corruption, Tiruchirapalli, T.N. v. Jayapaul (2004 (5) SCC 223). It was observed that nothing was pointed out to show that the investigation had caused prejudice or was biased against the accused. In the instant case, the accused was informed of his rights and options to be exercised. He consented to be searched in the presence of PW-3. Therefore, it was not open to him even to urge non-compliance of Section 50. In fact in S. Jeevanatham's case (supra) this Court did not accept the plea that an officer who was the complainant cannot be the investigating officer. The question of prejudice or bias has to be established and not inferred. In any event, there cannot be any legal presumption in that regard. At this juncture, it is to be noted that under sub-section (3) of Section 50, the Gazetted Officer or the Magistrate before whom the person who is to be searched is brought can, in a given case, come to hold that there is no reasonable ground for the search and shall forthwith "discharge" the person. Otherwise, he shall direct the s....