1996 (1) TMI 427 - SC - Customs

Whether a person to be searched under Section 50 of the Nercotic Drugs and Psychotropic Substances Act, 1985 has a right to be given an option of beinq searched either by a Gazetted Officer or by a Magistrate? Held that - 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 Magistrate, depending upon who is conveniently available. The option under Section 50 of the Aet, as it plainly reads, is only of being searched in the presence of such senior officer. There is no further option of being searched in the presence of either a Gazetted Officer or of being searched in the presence of a Magistrate. The use of the word nearest in Section 50 is relevant. The search has to be ccnducted at the earliest and, once the person to be searched opts to be searched in the presence of such senior officer, it is for the police officer who is to conduct the search to conduct it in the presence of whoever is the most conveniently available Gazetted officer or Magistrate. In the result, we find no substance in the only argument advanced before us on behalf of the appellant. The appeal is dismissed.

Summary

Issues:
Interpretation of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 regarding the right of a person to choose to be searched by a Gazetted Officer or a Magistrate.

Detailed Analysis:

1. Issue of Compliance with Section 50: The case involved a person who was found in possession of opium and was charged under the Narcotic Drugs and Psychotropic Substances Act, 1985. The accused contended that the provisions of Section 50, which allow a person to choose to be searched by a Gazetted Officer or a Magistrate, were not complied with. The trial judge convicted the accused, and the High Court upheld the conviction, noting that the accused was given the option to be searched before a Gazetted officer, which he chose. The main argument before the Supreme Court was whether the accused was adequately informed of his right to choose the manner of search.

2. Interpretation of Section 50: Section 50 of the Act outlines the conditions under which a search of a person shall be conducted. The accused argued that if he was unwilling to be searched by a police officer, he must be given the option to be searched by a Gazetted Officer or a Magistrate. The appellant relied on a previous judgment that emphasized the importance of informing the person to be searched of their right to choose the manner of search. The Supreme Court analyzed the language of Section 50 and held that the accused is only given the option to choose to be searched in the presence of a Gazetted Officer or a Magistrate, and the choice of the nearest senior officer is to be exercised by the officer conducting the search, not the accused.

3. Precedent and Judicial Interpretation: The Supreme Court referred to a previous judgment where it was emphasized that the accused must be made aware of their right to choose to be searched before a Gazetted Officer or a Magistrate. The Court reiterated the importance of ensuring that the accused is informed of this right as granted by the statute. Additionally, the Court highlighted that the use of the term "nearest" in Section 50 is significant, indicating that the search should be conducted promptly and in the presence of the most conveniently available senior officer.

4. Decision and Dismissal of Appeal: The Supreme Court concurred with the interpretation that the accused is only given the option of being searched in the presence of a senior officer, either a Gazetted Officer or a Magistrate. The Court found no merit in the appellant's argument that the accused must be explicitly informed of the option to be searched before a Gazetted Officer or a Magistrate. Consequently, the appeal was dismissed, and no costs were awarded.

In conclusion, the judgment clarified the interpretation of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regarding the right of a person to choose to be searched by a Gazetted Officer or a Magistrate, emphasizing that the accused is only given the option of being searched in the presence of a senior officer without the explicit choice between a Gazetted Officer or a Magistrate.