MANOHAR LALversusSTATE OF RAIASTHAN

                                        MANOHARLAL                                         A
;   , ..I                                        v.
                                    STATE OF RAIASTHAN

                                       JANUARY 22, 1996

                             [J.S. VERMA AND B.N. KIRPAL, JJ.]                             B

        1         Narcotic Drugs and Psychotropic Substances Act, 1985 :

                  S. 5(}-Search-Option to accused as to whether the search should be
            made in the presence of a Gazetted Officer or in the presence of a             C
            Magistrate-But choice of nearest Gazetted Officer or nearest Magistrate has
            to be exercised by the-Officer making the search and not by the accused-The
            construction of the provision being plain and there is no decision taking a
            contrary view no need to refer to a 3 Judge Bench.

                  CRIMINAL APPELLATE JURISDICTION                   S.L.P. (CRL) No.       D
            184/96.

                 From the Judgment and Order dated 5.9.95 of the Rajasthan High
            Court in S.B. Cr!. A. No. 537 of 1993.

                  S.K. Gambhir for Vivek Gambhir for the Appellant/petitioner.             E
                  The following Order of the Court was delivered :

     ;            The submission of learned counsel for the petitioner is that there is
            non-compliance of Section 50 of the Narcotic Drugs and Psychotropic
            Substances Act, 1985 (for short "the N.D.P.S. Act") which renders the          F
            conviction of the petitioner illegal. The learned counsel submitted, placing
            reliance on the decision of this Court in Saiyad Mohd. Saiyad and Ors. vs.
            State of Gujarat, (1995 (3) SCC 610), that the burden is on the prosecution
            to prove due compliance of Section 50 of the N.D.P.S. Act. It is sufficient
            to say that in the present case, the High Court has gone into this question    G
            and recorded a clear finding that there was compliance of Section 50 of
        1   the N.D.P.S. Act in as much as the accused was given the option specified
            in the provision and on exercise of that option by him, he was searched in
            the presence of a Gazetted Officer.

                  Learned counsel for the petitioner further submitted that another H
                                              837
    838                    SUPREME COURT REPORTS                  [1996] 1 S.C.R.

A requirement of Section 50 of the N.D.P.S. Act is that the accused should
  also be given the option to choose whether he wanted to be searched in
  the presence of a Gazetted Officer or in the presence of a Magistrate. It
                                                                                      ' '
  is submitted that this further option was not given to the petitioner in the
  present case. We are unable to accept such a construction of Section 50 of
  the N.D.P.S. Act. The provision only requires the option to be given to the
B
  accused to say whether he would like to be searched in the presence of a
  Gazetted Officer or a Magistrate; and on exercise of that option by the
  accused, it is for the officer concerned to have the search made in the
  presence of the nearest Gazetted Officer or the nearest Magistrate
  whosoever is conveniently available for the purpose in order to avoid undue
C delay in completion of that exercise. It is clear from Section 50 of the
  N.D.P.S. Act that the option given thereby to the accused is only to choose
  whether he would like to be searched by the officer taking 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
D nearest Magistrate has to be exercised by the officer making the search and
   not by the accused.

           Learned counsel also referred to an order dated 8.1.1996 made in
    Special Leave Petition (Cr!.) No. 2546 of 1995 Raghbir Singh v. State of
    Haryana, wherein, according to him, a similar question has been referred
E   for decision by a 3-Judge Bench on the basis that no decision so far has
    decided the question involved in the second submission made by him. It is
    sufficient to say that there being no decision taking a contrary view, and
    in our opinion, the construction being plain, it is unnecessary for us to refer
    this case to a 3-Judge Bench.

F           Special leave petition is dismissed.

     G.N.                                                      Petition dismissed.