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TMI Blog2000 (8) TMI 1096X X X X Extracts X X X X X X X X Extracts X X X X ..... be searched before a gazetted officer or a Magistrate and the same having been denied, there cannot be any doubt that failure on the part of the prosecution in complying with the provisions of Section 50, renders the recovery of illicit article suspect and vitiates the conviction and sentence of the accused, since the conviction in the case in hand is based solely on the alleged possession of Charas, which was recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act. In the aforesaid circumstances, the conviction and sentence is set aside and the accused be set at liberty forthwith, unless required in any other case. Fine amount, if has been paid, may be refunded to the accused. Criminal Appeal is accordingly allowed. - CRL.A. 701 OF 2000 - - - Dated:- 25-8-2000 - V.C.Banerjee and G.B. Pattanaik, JJ JUDGMENT Leave granted. The appellant was tried by the learned Additional Sessions Judge, Mahsana in the State of Gujarat, for the offence under Section 20-B(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) , as he was found in possession of 9 gms. of Charas on 10.5.199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to inform the accused of his right to be searched before a gazetted officer or before a Magistrate, as provided under Section 50 of the Act? According to the learned counsel for the respondent, it is only when a search is made by an authorised officer under Section 41(2) of the Act, it is only then, the provisions of Section 50 can be attracted but when a search is made by an officer of gazetted rank of the department of Central Excise, who is empowered under sub-section(2) of Section 41, then the provisions of Section 50 are not required to be complied with inasmuch the empowered officer himself is a gazetted officer. According to the learned counsel for the accused appellant, however the provisions of Section 50 are required to be complied with irrespective of the fact whether the search is being made by the empowered officer, who may be an officer of the gazetted rank or by an officer duly authorised by the empowered officer under Section 42 of the Act. To ensure fairness in the search itself and for compliance of Section 50 of the Act, no differentiation can be made whether the search is being made by the empowered officer, who obviously is an officer of a gazetted rank or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 42. Power of entry, search, seizure and arrest without warrant or authorisation:- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset (a) enter into and search any such building, conveyance or place; (b) in case of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e empowered by a general or special order by the Central Government, conferring the power to arrest a person or search a building, conveyance or place, if he has reason to believe from personal knowledge or information that the person concerned has committed an offence punishable under Chapter IV or that any narcotic drug or psychotropic substance, in respect of which any offence punishable under Chapter IV, has been committed or any document or other article which may furnish evidence of the commission of such offence, has been kept or concealed in any building, conveyance or place. Sub-section(2) of Section 41 further enables the State Government to empower any officer of the gazetted rank of the revenue, drug control, excise, police or any other department by a general or special order to perform the said function. The said sub-section also confers power on such empowered gazetted officer to authorise any officer, subordinate to him but superior in rank to a peon, sepoy or a constable to perform the said function, for which the general or special order has empowered him. Section 42 is the power of entry, search, seizure and arrest without any warrant or authorisation. Section 50 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard contained in Section 50 to obviate any doubt of the illicit articles under the Act and this provision was engrafted having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable. It is in this connection, it would be appropriate to extract the observations made by a Three Judge Bench of this Court in the case of Saiyad Mohd. Saiyad Umar Saiyad and Ors. Vs. State of Gujarat, 1995(3) SCC Page 610: It is to be noted that under the NDPS Act, punishment for contravention of its provisions can extend to rigorous imprisonment for a term which shall not be less than 10 years but which may extend to 20 years and also to fine which shall not be less than Rupees one lakh but which may extend to Rupees two lakhs, and the Court is empowered to impose a fine exceeding Rupees two lakhs for reasons to be recorded in its judgment. Section 54 of the NDPS Act shifts the onus of providing his innocence upon the accused; it states that in trials under the NDPS Act it may be presumed, unless and until the contrary is proved, that an accused has comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search illegal because the suspect would not be able to avail of the protection which is inbuilt in Section 50. It was further held that if the person concerned requires, on being so informed by the empowered officer or otherwise, that his search be conducted in the presence of a gazetted officer or a Magistrate, the empowered officer is obliged to do so and failure on his part to do so would cause prejudice to the accused and also render the search illegal and the conviction and sentence of the accused based solely on recovery made during that search bad. This Court further held that bearing in mind the purpose for which the safeguard has been made, it is held that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty on the investigating officer (empowered officer) to ensure that search of the person (suspect) concerned is conducted in the manner prescribed by Section 50, by intimating to the person concerned about the existence of his right, that if he so requires, he shall be searched before a gazetted officer or a Magistrate and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate would cause ..... X X X X Extracts X X X X X X X X Extracts X X X X
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