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TMI Blog2003 (12) TMI 589X X X X Extracts X X X X X X X X Extracts X X X X ..... ving statement under Section 313 of the Code of Criminal Procedure, 1973, the accused did not say that he was unaware of his rights or that he was misled on that account in any manner. On the contrary, in general and vague manner it was only said that he did not know or he had no idea of the allegations. Though that by itself is not sufficient to convict accused, in view of the procedural safeguards required to be observed by compliance with the requirements of Section 50, yet that is of some relevance in appreciating the grievance, now sought to be ventilated. There is no infirmity in the impugned judgment to warrant interference. X X X X Extracts X X X X X X X X Extracts X X X X ..... servations made by a Constitution Bench in State of Punjab v. Baldev Singh (1999 (6) SCC 172). With reference to the questions that were formulated for determination in Baldev Singh's case (supra), it was submitted that the sanctity that is attached to the compliance with the requirements has to be culled out from references made to the principles under the Preventive Detention Laws, The Fifth Amendment to the American Constitution and the imperative and obligatory nature of the duty as indicated in D.K. Basu v. State of West Bengal (1997 (1) SCC 416). The Act provides stringent measures attached for infraction. That itself brings in the necessity to ensure strict compliance with the requirements. What has been done in the instant case is not in any way compliance with the requirements as there was no specific information given about the right. It is pointed out that in some cases, this Court has said that substantial compliance would be sufficient which is against the settled position in law that in respect of penal statutes substantial compliance will not be sufficient. In response, learned counsel for the State submitted that the purpose of informing the accused is to ensure th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person concerned of his right under sub- section (1) of Section 50 of the Act of being taken to the nearest gazetted officer or nearest Magistrate for making the search. However, such information may not necessarily be in writing. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him. To put it differently, fair play and transparency in the process of search has been given the primacy. In Raghbir Singh v. State of Haryana (1996 (2) SCC 201), the true essence of Section 50 was highlighted in the following manner: "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 liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of a gazetted officer or a Magistrate. In this case PW-8 has deposed that she told the appellant that if he wished he could be searched in the presence of the gazetted officer or a Magistrate to which the appellant had not favourably reciprocated. According to us the said offer is a communication about the information that the appellant has a right to be searched so. It must be remembered that the searching officer had only Section 50 of the Act then in mind unaided by the interpretation placed on it by the Constitution Bench. Even then the searching officer informed him that "if you wish you may be searched in the presence of a gazetted officer or a Magistrate". This according to us is in substantial compliance with the requirement of Section 50. We do not agree with the contention that there was non-compliance with the mandatory provision contained in Section 50 of the Act". (Underlined for emphasis) Though, learned counsel for the appellants submitted that this was a case where the Court erroneously held that substantial compliance would be sufficient, we find that the underlined portion is what was held by the Court to be information of the right. The offer in the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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