Ranjit Singh vs State of M.P.

S.P. Khare, J.—Appellant Ranjit Singh has been convicted u/s 18 of the Narcotic Drugs and Psychotropic Substances Act. 1985 and sentenced to rigorous imprisonment for 10 years and to a fine of Rs. one lakh.

The trial Court has held that the Appellant was found in possession of 100 grams of opium as per seizure memo Ex. P1 on 6.2.1987. It was recovered on the accused on his personal search from the right side pocket of his trouser.

The only argument in this appeal raised on behalf of the Appellant is that there is not even a faint whisper either in documents or in the evidence produced by the prosecution that the mandatory provisions of Section 50 of the Act was complied with. It is a case of the year 1987 and it appears that by that time the Investigating Officers were not aware of the mandatory provisions of Section 50 of the Act. After the decisions of the Supreme Court in State of Punjab Vs. Balbir Singh, and Abdul Rahman Vs. State of Kerala, , legal position is very clear. It has been held that the provisions of Section 50 of the Act are mandatory. The words �if the person to be searched so desired�, appearing in the section, are very important. It was further observed that in the context in which the right of a person to be searched before a Gazetted Officer or Magistrate, has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right, if he so requires to be searched before a Gazetted Officer or a Magistrate. The Court also made it clear that this is a valuable right given to the person to be searched in the presence of a Gazetted Officer or Magistrate, if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right. Therefore, it is to be taken as an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that, if he so chooses he will be searched in the presence of a Gazetted Officer or Magistrate. Thus, to that extent, Section 50 is mandatory.

In view of the above legal position, the conviction of the accused u/s 18 of the Act cannot be upheld as there was noncompliance of provisions of Section 50 of the Act in this case.

In the result, this appeal is allowed. The conviction and sentence of the Appellant u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, are set aside. At present, the Appellant is on bail. The bail bonds are cancelled.