Full Judgment Text
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PETITIONER:
MANOHAR LAL
Vs.
RESPONDENT:
STATE OF RAJASTHAN
DATE OF JUDGMENT: 22/01/1996
BENCH:
VERMA, JAGDISH SARAN (J)
BENCH:
VERMA, JAGDISH SARAN (J)
KIRPAL B.N. (J)
CITATION:
JT 1996 (1) 480 1996 SCALE (1)477
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
The submission of learned counsel for the petitioner is
that there is non-compliance of Section 50 of the narcotic
Drugs and psychotropic Substances Act, 1985 (for short "the
N.D.P.S. Act") which renders the conviction of the
petitioner illegal. The learned counsel submitted, placing
reliance on the decision of this Court in Saiyad Mohd.
Saiyad Umar Saiyad and Ors. vs. State of Gujarat, (1995 (3)
SCC 610), that the burden is on the prosecution to prove due
compliance of Section 50 of the N.D.P.S. Act. It is
sufficient to say that in the present case, the High Court
has gone into this question and recorded a clear finding
that there was compliance of Section 50 of the N.D.P.s. Act
inasmuch as the accused was given the option specified in
the provision and on exercise of the at option by him, he
was searched in the presence of a Gazetted Officer.
Learned counsel or the petitioner further submitted
that another requirement of Section 50 of the N.D.P.S. Act
is that the accused should also be given the option to
choose whether he wanted to be searched in the presence of a
Gazetted Officer or in the presence of a magistrate. It is
submitted that this further option was not given to the
petitioner in the present case. We are unable to accept such
a construction of Section 50 of the N.D.P.S. Act, he
provision only requires the option to be given to the
accused to say whether he would like to be searched in the
present of a Gazetted Officer of a Magistrate; and on
exercise of that option by the accused, it is for the
officer concerned to have the search made in the presence of
the nearest Gazetted Officer or the nearest Magistrate
whosoever is conveniently available for the purpose in order
to avoid undue delay in completion of that exercise. 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 Gazette Officer
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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.
Learned counsel also referred to an order dated
8.1.1996 made in Special Leave Petition (Crl) No. 2546 of
1995 - Raghbir Singh vs. State of Haryana - wherein,
according to him, a similar question has been referred for
decision by a 3-Judge Bench on the basis that no decision so
far has decided that question involved in the second
submission made by him. It is sufficient to say that there
being no decision taking a contrary view, and in our
opinion, the construction being plain, it is unnecessary for
us to refer this case to a 3-Judge Bench.
Special leave petition is dismissed.