STATE OF U.P.versusSUBHASH KUMAR SINGH TOMAR

                        [2009) 5 S.C.R. 1139


                           STATE OF U.P.                          A
                                  v.
                 SUBHASH KUMAR SINGH TOMAR
                 (Criminal Appeal No. 237 of 2004)
                          APRIL 15, 2009
                                                                  B
       [DR. ARIJIT PASAYAT, LOKESHWAR SINGH PANTA
                   AND P. SATHASIVAM, JJ.]

          Narcotic Drugs and Psychotropic Substance Act, 1985
     - s. 50 - Recovery of contraband on personal ·search of c
     suspect - Acquittal by High Court on the ground of non-
     compliance of s.50 - Interference with - Held: Not called for
     - Accused has right to be infonned that he has right to require
,,   his search to be conducted in presence of Gazetted Officer
     or Magistrate - Failure to do so would cause prejudice to D
     accused and render the search illegal.
          In this appeal, order of High Court, acquitting the
     appellant for non-compliance with the requirement of s.50
     of the Narcotic Drugs and Psychotropic Substance Act,
     1985 is under challenge.                                     E

         Dismissing the appeal, the Court

          HELD: It is an obligation of the Empowered Officer
     and his duty before conducting the search of the person F
     of a suspect on the basis of prior information to inform
     the suspect that he has the right to requii'e his search to
     be conducted in the presence of a Gazetted Officer or a
     Magistrate. The failure to so inform the suspect of his right
     would render the search illegal because the suspect
                                                                   G
     would not be able to avail of the protection which is in
     compliance with section 50 of the Narcotic Drugs and
     Psychotropic Substance Act. Similarly, if the person
     concerned required on being so informed by the
                                1139                              H
    1140       SUPREME COURT REPORTS [2009) 5 S.C.R.


A Empowered Officer or otherwise i.e. that search be
  conducted in the presence of a Gazetted Officer or
  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
B conviction and sentence to the accused based solely on
  recovery may treat the search as bad. Thus, the judgment
  of the High Court does not suffer from any infirmity to
  warrant interference. [Paras 2 and 3) [1114-C-F]

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal            ,
c No. 237 of 2004.
        Frorm the Judgment & Order dated 04.03.2003 of the High
    Court of Judicature at Allahabad in Criminal Appeal No. 93/
    1993.
D
        Sahdev Singh, Mohd. Fuzail Khan and Chandra Prakash
    Pandey for the Appellants.

       Vivek Vishnoi, Mukesh Verma and Rameshwar Prasad
    Goyal for the Respondents.
E
        The Judgment of the Court was delivered by

       DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is
  to the judgment of a learned Single Judge of the Allahabad High
  Court allowing the appeal filed by the respondent. On the
F accusation of offence committed punishable under Section
  20(b) of The Narcotic Drugs and Psychotropic Substances Act,
  1985 (in short 'Act') the accused faced trial. Learned Ill
  Additional District & Sessions Judge, Kanpur, found the
  accused guilty and sentenced him to 10 years rigorous
G imprisonment and to pay a fine of Rs.1,00,000/- with default
  stipulation. The case of the prosecution is that on 3.1.1991,
  PWs. 1 and 2 checked the accused and his personal search
  resulted in recovery and seizure of 500 grams of charas. Two
  samples of 25 gms. each were separately taken and sent for
H
    >           STATE OF U.P. v. SUBHASH KUMAR SINGH                   1141
                     TOMAR [DR. ARIJIT PASAYAT, J.]
        chemical analysis. On analysis the contraband was found to be            A
        charas by the Public Analyst. Before the High Court the only
        stand taken by the accused was that there was non-compliance
        with the requirement of Section 50 of the Act. The High Court
        found on going through the evidence of PWs 1 and 2 that there
        is nothing to suggest that the requirement of Section 50 was             B
        complied with. Accordingly, the judgment of acquittal was
        passed. In support of the appeal, learned counsel for the
        appellant-State submitted that there is nothing to doubt the
        statement of public witnesses PWs. 1 and 2 that they had
        seized the contraband articles from the accused persons.                 c
             2. It is an obligation of the Empowered Officer and his duty
        before conducting the search of the person of a suspect on the
        basis of prior information to inform the suspect that he has the
        right to require his search to be conducted in the presence of
        a Gazetted Officer or a Magistrate. The failure to so inform the         D
        suspect of his right would render the search illegal because the
        suspect would not be able to avail of the protection which is in
        compliance with Section 50. Similarly, if the person concerned
        required on being so informed by the Empowered Officer or
        otherwise i.e. that search be conducted in the presence of a             E
        Gazetted Officer or 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 to the accused based solely on
        recovery may treat the search as bad.                                    F

                3. Above being the position in law, the judgment of the High ·
        Court does not suffer from any infirmity to warrant interference.

                4. The appeal fails and is dismissed.
                                                                                 G
        N.J .                                           Appeal dismissed.




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