Narcotics Central Bureau vs Sukh Dev Raj Sodhi

Heard learned counsel for the appellant. Despite

notice, none appears for the respondent.

This is an appeal by the Narcotics Central Bureau

impugning judgment and order dated 11.01.2002 passed by the

High Court whereby the High Court, on consideration of the

facts and the legal position of the case, was pleased to

hold that the mandatory provision of Section 50 of the

Narcotic Drugs and Psychotropic Substances Act, 1985

(hereinafter referred to as 'NDPS Act') has not been

complied with and the violation of the said Act has vitiated

the conviction and on that ground, the High Court was

pleased to set aside the conviction and did not examine any

other fact of the case. In this appeal also, we do not go

into other factual aspects.

...2.

CRIMINAL APPEAL NO. 1079 OF 2002 .2.

It is not in dispute that pursuant to the High

Court's order, the respondent is set at liberty.

Now, the learned counsel for the appellant

submits that in the instant case, from the search notice (at

Annexure P-1), it will appear that the requirement of

Section 50 of the NDPS Act has been complied with. From the

said notice, it appears that the accused was informed that

he has the option of being searched either in the presence

of gazetted officer or Magistrate and it appears that the

accused wanted to be searched in the presence of gazetted

officer. The learned counsel for the appellant submits that

by giving the option to the accused, the appellant has

complied with the requirement under Section 50 of the NDPS

Act.

The obligation of the authorities under

Section 50 of the NDPS Act has come up for consideration

before this Court in several cases and recently, the

Constitution Bench of this Court in the case of Vijaysinh

Chandubha Jadeja v. State of Gujarat [(2011) 1 SCC 609] has

settled this controversy. The Constitution Bench has held

that requirement of Section 50 of the NDPS Act is a

mandatory requirement and the provision of Section 50 must

be very strictly construed.

...3.

CRIMINAL APPEAL NO. 1079 OF 2002 .3.

From the perusal of the conclusion arrived at

by this Court in Vijaysinh Chandubha Jadeja's case, it

appears that the requirement under Section 50 of the NDPS

Act is not complied with by merely informing the accused of

his option to be searched either in the presence of a

gazetted officer or before a Magistrate. The requirement

continues even after that and it is required that the

accused person is actually brought before the gazetted

officer or the Magistrate and in Para 32, the Constitution

Bench made it clear that in order to impart authenticity,

transparency and creditworthiness to the entire proceedings,

an endeavour should be made by the prosecuting agency to

produce the suspect before the nearest Magistrate.

That being the law laid down by the

Constitution Bench of this Court on interpretation of

Section 50 of the NDPS Act, we do not think that the

obligation under Section 50 of the Act has been discharged

statutorily by the appellant in this case. We, therefore,

find no reason to interfere with the finding made by the

High court. The appeal is, accordingly, dismissed.

................., J.

[ASOK KUMAR GANGULY]

................., J.

[DEEPAK VERMA] NEW DELHI;

MAY 20, 2011.