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TMI Blog2005 (4) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, it is for the accused to establish prejudice which is to be done at the trial. On the facts of the case, actually these questions do not arise. The object of requiring the search to be conducted if so required before the specified Gazetted officer or nearest Magistrate is to ensure that the officers who are charged with a duty of conducting search conduct them properly and do no harm or wrong such as planting of an offending drug by any interested party and preventing fabrication of any false evidence. The provision in essence intends to act as a safeguard against vexatious search, unfair dealings and to protect and safeguard the interest of innocent persons. In order to avoid arrest and nip the investigation in the bud thereby protecting the liberty of a person, a statutory safeguard is provided in sub- section (3) of Section 50. Power has been vested in the Magistrate or the Gazetted Officer before whom the concerned person is brought on his requisition made under sub-section (2) to forthwith discharge the person without formal proceedings on his satisfaction that there is no reasonable ground for search. As a consequence, search takes place only when he declines to discha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opium, a sample weighing 30 grams was taken and was sealed. The remaining opium was also sealed. The accused was accordingly arrested vide arrest memo Ex.P-5 and memo of recovery was prepared. The SHO, thereafter, registered a case vide FIR Ex.P-4 and deposited the recovered opium in the 'Malkhana'. During investigation, the police recorded the statement of witnesses and sent the sample to the Forensic Science Laboratory. On chemical examination, the sample contained in the packet marked 'B' gave positive tests for the chief constituents of coagulated juice of opium poppy having 5.43% morphine. After completion of all these formalities, the accused was charge sheeted under Sections 8 and 18 of the Act. The Trial Judge framed charges against the accused under Sections 8 and 18 of the Act, to which the accused denied and claimed trial. The learned Sessions Judge, Baran held that the accused was guilty, convicted him in terms of Sections 8 and 18 of the Act and sentenced him to undergo 10 years RI with a fine of rupees one lakh with a default stipulation of one year's RI. In appeal, the main stand of the accused respondent was that there was non-complianc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Magistrate referred to in sub-section (1). (3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag, or premises. (See Kalema Tumba v. State of Maharashtra and Anr. (JT 1999 (8) SC 293), State of Punjab v. Baldev Singh (1999 (6) SCC 172) and Gurbax Singh v. State of Haryana (2001(3) SCC 28). The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh's case (supra). In order to appreciate rival submissions, some of the observations made by the Constitution Bench in Baldev Singh's case (supra) are required to be noted. It is also to be noted that the Court did not in the abstract decide whether Section 50 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 basis of the evidence led at the trial. Finding on that issue, one way or the other would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50 and, particularly, the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial. (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50 and render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. (7) That an illicit article seized f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed . 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 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. 11. The option under Section 50 of the Act, 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 conducted 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was detained. As noted above, in Raghbir Singh's case (supra) the option given 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. In the instant case all the options were made known to the accused and he himself opted to be searched in the presence of the Deputy Superintendent of Police (PW-3). Sections 41, 42, 43 or Section 50 do not speak of a raiding party. Section 41(2) speaks of arrest by any officer of gazetted rank of enumerated department or by an officer subordinate to him (but superior in rank to a peon, sepoy or a constable) to arrest such a person. Under sub-section (1) of Section 41 a warrant may be addressed to an officer for arrest of a person under circumstances enumerated in the said provision. Section 42 deals with action permissible to be taken by an officer authorized. Section 43 deals with power of an officer of any of the departments mentioned in Section 42. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that an officer who was the complainant cannot be the investigating officer. The question of prejudice or bias has to be established and not inferred. In any event, there cannot be any legal presumption in that regard. At this juncture, it is to be noted that under sub-section (3) of Section 50, the Gazetted Officer or the Magistrate before whom the person who is to be searched is brought can, in a given case, come to hold that there is no reasonable ground for the search and shall forthwith discharge the person. Otherwise, he shall direct the search to be made. The expression 'discharge' used in sub-section (3) of Section 50 is used in the sense that the detention is terminated. The powers to detain, search and arrest have been conferred by Sections 41(2), 42 and 43. Under Section 42(1)(d) the officer authorized may between sunrise and sunset detain and search and if he thinks proper arrest any person who he has reason to believe has committed an offence punishable under Chapter IV relating to the notified drug or substance. The question of arrest comes after a person is detained and searched and thereafter if the officer thinks proper arrest can be effected on the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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