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TMI Blog2011 (7) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; During the course of a joint Naka held on the 4th January, 1999 by a party comprising officials from the Customs Preventive Staff, the Punjab Police and the CIA Staff, Majitha, set up at the T-crossing near Saki Bridge, Ajnala, a Maruti car bearing registration No. PB-02-P-5595 was seen coming from the opposite side at about 9.40 a.m. There were three occupants in the car and two of them taking advantage of the thick fog at that time ran away whereas the third one, the appellant Nirmal Singh, was apprehended by PW.4 Prem Singh-Superintendent Customs. -2-PW.4 disclosed his identity to the appellant and told him that as he was suspected to be in possession of some narcotic, he should give his option as to whether he wished to be sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veral witnesses in defence. The Trial Court, on a consideration of the evidence, held that the case against the appellant had been proved beyond doubt more particularly as he had made a confession to PW.4 which was admissible in evidence as PW.4 was not a police officer. It was also found that the provisions of Section 50 of the Act had been complied with as Ex. P.A., a consent memo, had been drawn up prior to the search. The Trial Court accordingly convicted and sentenced the appellant, as already mentioned above. The conviction and sentence has been confirmed by the High Court. Before us, Mr. Sanjay Jain, the learned counsel for the appellant, has raised primarily two arguments based on the judgments of this Court. The first is Vijaisin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sence of a Magistrate or a Gazetted Officer and that this amounted to full compliance with Section 50 of the Act. He has also pointed out that although Noor Aga's case did say that a confession made to a Custom Officer was hit by Section 25 of the Evidence Act -5-and was therefore not admissible in the evidence, yet a judgment of a coordinate Bench of this Court in Kanahiya Lal vs. Union of India case (2008 (4) SCC 668) had reiterated the earlier position in the law as given in Raj Kumar vs. Union of India - 1990(2) SCC 409 that Officers of the Revenue Intelligence and ipso facto of the Customs Department could not be said to be police officers and a confession before them would not be hit by Section 25 of the Evidence Act. We have examine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer of a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer under sub- section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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