2013 (1) TMI 306 - SC - Central Excise

NDPS Act - Whether the empowered officer acting under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 NDPS Act is legally obliged to apprise the accused of his right to be searched before a Gazetted Officer or a Magistrate? - Held that - Statement of PW1, the officer who had conducted the search on the person of the appellant, would clearly indicate that he had only informed the accused that he could be searched before any Magistrate or a Gazetted Officer if he so wished. The fact that the accused person has a right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or a Magistrate was not made known to him. There is an obligation on the part of the empowered officer to inform the accused or the suspect of the existence of such a right to be searched before a Gazetted Officer or a Magistrate, if so required by him. Only if the suspect does not choose to exercise the right in spite of apprising him of his right, the empowered officer could conduct the search on the body of the person. In this connection, also examining the general maxim ignorantia juris non excusat and whether in such a situation the accused could take a defence that he was unaware of the procedure laid down in Section 50 of the NDPS Act. Ignorance does not normally afford any defence under the criminal law, since a person is presumed to know the law. Thus noticing this fact legislature in its wisdom imposed an obligation on the authorized officer acting under Section 50 of the NDPS Act to inform the suspect of his right under Section 50 to be searched in the presence of a Gazetted Officer or a Magistrate warranting strict compliance of that procedure - non-compliance of this mandatory procedure has vitiated the entire proceedings initiated against the accused/appellant - Special Court as well as the High Court has committed an error in not properly appreciating the scope of Section 50 of the NDPS Act. The appeal is, therefore, allowed & conviction and sentence imposed by the Sessions Court and affirmed by the High Court are set aside & accused-appellant, who is in jail, to be released forthwith.

Summary

Issues:
1. Compliance with the procedure under Section 50 of the NDPS Act regarding the accused's right to be searched before a Gazetted Officer or a Magistrate.

Analysis:
The judgment revolves around the interpretation and application of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The central issue in this case is whether the empowered officer conducting a search under Section 50 is legally obligated to inform the accused of their right to be searched before a Gazetted Officer or a Magistrate, and whether such a procedure is mandatory under the NDPS Act.

The facts of the case involve the appellant being searched by an Additional Superintendent of Police, resulting in the recovery of contraband. The appellant was subsequently convicted and sentenced by the Sessions Court, a decision upheld by the High Court. The appellant challenged this decision, arguing that the conviction was flawed due to non-compliance with the procedure laid down in Section 50 of the NDPS Act.

The appellant's counsel contended that the failure to inform the accused of their right to be searched before a Gazetted Officer or a Magistrate invalidated the proceedings. Reference was made to a previous judgment emphasizing the mandatory nature of this provision. On the other hand, the State of Rajasthan argued that there was substantial compliance with the procedure under Section 50 and supported the lower court's decision.

The Supreme Court, after considering conflicting views on the matter, emphasized the importance of strict compliance with Section 50 of the NDPS Act. The Court highlighted that the empowered officer must inform the accused of their right to be searched before a Gazetted Officer or a Magistrate, and failure to do so can vitiate the proceedings. The Court analyzed the deposition of the officer involved in the search, noting that the accused was not made aware of this crucial right.

Furthermore, the Court delved into the legal principle of "ignorantia juris non excusat" (ignorance of the law is no excuse) and discussed the rationale behind imposing an obligation on the authorized officer to inform the suspect of their rights under Section 50. The Court emphasized that ignorance of the law cannot be presumed, especially in situations where individuals may not be aware of legal provisions.

Ultimately, the Supreme Court held that the non-compliance with the mandatory procedure under Section 50 had vitiated the entire proceedings against the accused. As a result, the Court allowed the appeal, set aside the conviction and sentence imposed by the lower courts, and ordered the release of the accused-appellant from jail, if not required in connection with any other case.