Holding

Section 50 merely requires the search to be conducted in the presence of the nearest senior officer (Gazetted Officer or Magistrate) as determined by the searching officer, and does not grant the accused a choice between the two.

Summary

Raghbir Singh was caught with opium during a police raid and was offered the choice of being searched by the police officer or before a Gazetted Officer; he chose the latter and the search yielded the contraband. He was convicted under Section 18 of the NDPS Act and sentenced to ten years' rigorous imprisonment. On appeal, he contended that Section 50 of the NDPS Act required that he be given a choice between being searched before a Gazetted Officer or a Magistrate, and that this right was not complied with. The Supreme Court examined the language of Section 50 and held that the provision only obliges the searching officer to conduct the search in the presence of the nearest senior officer—either a Gazetted Officer or a Magistrate—as decided by the officer, not as a choice for the accused. Consequently, the conviction and sentence were upheld and the appeal dismissed.

Issues considered

Whether Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 gives the accused a right to choose between being searched before a Gazetted Officer or a Magistrate.

Legislation cited

Indian Evidence Act, 1872s. 114
Narcotic Drugs and Psychotropic Substances Act, 1985s. 18, s. 41, s. 42, s. 43, s. 50

Subjects

NDPS ActSection 50search of accusedGazetted OfficerMagistratecriminal procedureevidentiary safeguard

Judgment

RAGHBIR SINGH A
v.
STATE OF HARYANA

JANUARY 29, 1996

[J.S. VERMA, S.P. BHARUCHA AND SUJATA V. MANOHAR, JJ.] B

Narcotic Drugs and Psychotropic Substances Act, 1985-Section
5{}-Right of accused to be searched in presence of a Gazetted Officer or a
Magistrate-<:hoice of nearest Gazetted Officer or Magistrate has to be exer-
cised by the Officer making search. c
The Appellant was charged with an offence punishable under the
Narcotic Drugs and Psychotropic Substances Act, 198S and tried. The trial
Judge convicted the accused of the offence punishable u/s 18 of the Act and
he was sentenced to undergo rigorous imprisonment for a term of ten
years. In the appeal before the High Court the appellant contended that D
. 1
the provisions of section SO had not been complied with, but the High
Court affirmed the conviction and the sentence while holding that the
evidence showed that the appellant had been asked whether he wanted to
be searched before a Gazetted Officer and, when he expressed that desire,
he was so searched. In this appeal against the judgment and order of the E
High Court, the question raised was whether a person to be searched u/s
SO of the Act has a right to be given an option of being searched either by
a Gazetted Officer or by a Magistrate.
'
The appellant submitted that an accused may be willing to be sear-
ched either by a police officer duly authorised u/s 42, but if he is not, he F
must be given the option of being searched either before a Gazetted Officer
or before a Magistrate and if the accused is not told that he can opt to be
searched before a gazetted officer or before a Magistrate, the provisions
of section SO are not satisfied.
G
Dismissing the appeal, this Court

HELD : 1.1. Finding a person to be in possession of articles which
are illicit under the provisions of the Narcotic Drugs and Psychotropic
Substances 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 H
1011
~-
1012 SUPREME COURT REPORTS (1996] 1 S.C.R.

A punishment. It is, therefore, that the Act affords the person to be searched
a safeguard. He may require the search to b~ conducted in the presence of J--
a senior officer. The senior officer may be ,a Gazetted or a Magistrate,
depending upon who is conveniently available. [1015-F]

1.2. The option under section 50 of the Act, as it plainly reads, is only
B of being searched in the presence of such seni.or officer. There is no further
I
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 seareh has to be conducted at the
earliest and, once the person to be searched opts to be searched in the
c presence of such senior officer, it is for the police officer who is to conduct
the search to conduct it in the presence ofwhiiever is the most conveniently
available Gazetted Officer or Magistrate. [1015-G-H, 1016-A]

Manohar Lal v. State of Rajasthan, Crl. M.P. No.138of1996 in S.L.P.
(Crl.) No. 184 of 1996 = [1999] 1 SCR decided on 22.1.1996 (SC), relied on.
D
Saiyad Mohd. Saiyad Umar Saiyad & Ors. v. State of Gujarat, [1995]
3 S.C.C. 610, referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
92 of 19%.
E
From the Judgment and Order d~ted 8.f-95 of the Punjab & Haryana
High Court in Cr!. A. No. 624-SB of 1994.

S.K. Dhingra for the Appellant. '
F l.S. Goyal for Ms. Indu Malhotra for tl)e Respondent.

The Judgment of the Court was delivered by

BHARUCHA, J. Leave granted.

G This appeal impugns the judgment and order of the High Court of

...,
Punjab & Haryana. It comes to be heard by a bench of three Judges by
reason of the fact that an order was made on 8th January, 1996, in that 1
behalf, having regard to the fact that the question was found to be of
importance, ·namely, whether a person to be searched under Section 50 of
H the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter
RAGHBIRSINGH v. STATE [BHARUCHA, J.) 1013

referred to as ':the Act") has a right to be given an option of being searched A
- r either by a Gazetted Officer or by a Magistrate.

On 1st May, 1991, a police party, led by the Station House Office,
Jakhal, upon information received, conducted a raid on the harvesting floor
of the accused near village Puran Majra. The accused was found holding B
a bag in his hand. He was given the option of being searched by the said
police officer or before a Gazetted officer. The accused opted to be
searched before a Gazetted officer. He was then searched in the presence
of a Gazetted officer and the bag he was carrying was found to contain
opium. He was charged with an offence punishable under the Act and
tried. The evidence of the prosecution was accepted. The trial judge c
convicted the accused of the offence punishable under Section 18 of the
said Act and he was sentenced to undergo rigorous imprisonment for a
term of ten years. The High Court, by the order that is impugned before
us, upheld the conviction and sentence. It noted that the appellant had
contended that the provisions of Section 50 had not been complied with, D
but it found that the e~dence showed that he had been asked whether he
wanted to be searched before a Gazetted officer and, when he expressed
that desire, he was so searched. The conviction and sentence was affirmed.

The only argument which is advanced on behalf of the appellant E
before us is that indicated in the referral order.

Section 50 reads thus :

"Conditions under which search of persons shall be conducted -
(i) When any officer duly authorised under Section 42 is about to F
search any person under the provisions of Section 41, Section 42
or Section 43, he shall, if such person so requires, take such person
without unnecessary delay to the nearest Gazetted Officer of any
of the departments mentioned in Section 42 or to the nearest
Magistrate.
G
(2) If such requisition is made, the officer may detain the person
until he can bring him before the Gazetted Officer or the
Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such H
1014 SUPREME COURT REPORTS [1996] 1 S.C.R.

A 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."

B It is submitted on behalf of the appellant that an accused may be
willing to be searched by a police officer duly authorised under Section 42,
but if he is not, he must be given the option of being searched either before
a Gazetted officer or before a Magistrate. If the accused is not told that
·he can opt to be searched before a Gazetted. officer or before a Magistrate,
C the provisions of Section 50 are not satisfied.

Reliance was placed by learned counsel for the appellant upon the
decision in Saiyad Mohd. Saiyad Umar Saiyad & Ors. v. State of Gujarat,
[1995] 3 SCC 610 (which was delivered by one of us, Bharueha, J., on behalf
D of a Bench of three Judges). It was submitted that the observations therein
supported the aforesaid submission. In paragraph 7 of the judgment this . .
was said :

"Having regard to the object for which the provisions of Section
50 have been introduced into the NDPS Act and when the language
E
thereof obliges the officer concerned to inform the person to be
searched of his right to be searched in the presence of a Gazetted
Officer or a Magistrate, there is no room for drawing a presump-
tion under Section 114, Illustration (e) of the Indian Evidence Act,
1872 .............. Very relevant in this behalf is the testimony of the
F officer conducting the search that he had informed the person to
be searched that he was entitled to demand that the search be
carried out in the presence of a Gazetted Officer or a Magistrate
and that the person had not chosen to so demand. If no evidence
to this effect is given the court must assume that the person to be
G searched was not informed of the protection the law gave him and
must find that the possession of illicit articles under the NDPS Act
was not established."

Emphasis was laid by learned counsel for the appellant upon paragraph 10
H wherein it was said :
RAGHBIRSINGHv. STATE [BHARUCHA, J.] 1015

- "(C)ourts dealing with offences under the NDPS Act should be A
very careful to see that it is established to their satisfaction that
the accused has been informed by the officer concerned that he
had a right to choose to be searched before a Gazetted Officer or
a Magistrate. It need hardly be emphasised that the accused must
be made aware of this right or protection granted by the statute
B
and unless cogent evidence is produced to show that he was made
aware of such right or protection, there would be no question of
presuming that the requirements of Section 50 were complied
J with 11
•

The very question that is referred to us came to be considered by a C
Bench of two learned Judges on 22nd January, 1996 in Criminal M.P. No.
138 of 1996 in S.L.P. (Crl.) No. 184 of 1996, Manohar Lal v. State of
Rajasthan. One of us (Varma, J.), speaking for the Bench, held :

"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 D
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 nearest Magistrate has to be exercised by the officer making
the search and not by the accused." E

We concur with the view taken in Manohar Lat's case.

Finding a person to be in possession of articles which are illicit under
the provisions of the Act has the consequence or requiring him to prove
that he was not in contravention of its provisions and it renders him liable F
to severe punishment. It is, therefore, that the Act affords the person to be
searched a safeguard. He may require the search to be conduced in the
presence of a senior officer. The senior officer may be a Gazetted officer
or a Magistrate, depending upon who is conveniently available.

The option under Section 50 of the Act, as it plainly reads, is only of G
- \ 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 H
1016 SUPREME COURT REPORTS [1996] 1 S.C.R.

A 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
available Gazetted officer or Magistrate.

In the result, we find no substance in the only argument advanced
before us on behalf of the appellant.
B
The appeal is dismissed. There shall be no order as to costs.

R.A. Appeal dismissed.

+ ....

•