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2013 DIGILAW 186 (HP)

State of H. P. v. Manjeet Singh Alias Manju

2013-03-20

SURINDER SINGH, V.K.AHUJA

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JUDGMENT Surinder Singh, J, (Oral) The present case is of recovery of 1 kg. charas allegedly from the personal search of the accused. The learned trial Court rightly acquitted the accused for non-compliance of Section 50 of the NDPS Act. In fact, the accused is required to be apprised of his right conferred under Section 50 of the Act, to be searched either in the presence of a Gazetted Officer or a Magistrate. Accused is neither shown to have apprised of his right nor any offer was given to him for search being conducted in the presence of a Gazetted Officer or a Magistrate more specifically when the investigating Officer was apprehending that the accused was having in his possession some contraband. In para 29 of the judgment rendered by the Supreme Court in Vijaysinh Chandubha Jadeja versus State of Gujarat (2011) 1 SCC 609 , it was observed as follows:- “xxxxxxxxxx we are of the firm opinion that the object with which the right under Section 50 (1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimize the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted officer or a magistrate. We have no hesitation in holding that insofar as the obligation of the authorized officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision”. [emphasis ours] 2. The above principle of law was also followed in its subsequent judgment by the Supreme Court in Suresh and others versus State of Madhya Pradesh 2013 Cri. L.J. 474. 3. The perusal of Ext. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision”. [emphasis ours] 2. The above principle of law was also followed in its subsequent judgment by the Supreme Court in Suresh and others versus State of Madhya Pradesh 2013 Cri. L.J. 474. 3. The perusal of Ext. PW1/A shows that the alleged option, given to the accused to comply Section 50 of the Act, is not a proper compliance in view of the above law laid down by the apex Court, as stated above. Thus the trial vitiates on account of non-compliance thereof. Hence, the acquittal of the accused requires no interference. The State appeal sans merit therefore dismissed. 4. The respondent is discharged of is bail bonds entered upon by him at any stage of these proceedings in appeal.