Manohar
Lal Vs. State of Rajasthan [1996] INSC 111 (22 January 1996)
Verma,
Jagdish Saran (J) Verma, Jagdish Saran (J) Kirpal B.N. (J)
CITATION:
JT 1996 (1) 480 1996 SCALE (1)477
ACT:
HEAD NOTE:
O R D
E R
The
submission of learned counsel for the petitioner is that there is
non-compliance of Section 50 of the narcotic Drugs and psychotropic Substances
Act, 1985 (for short "the N.D.P.S. Act") which renders the conviction
of the petitioner illegal. The learned counsel submitted, placing reliance on
the decision of this Court in Saiyad Mohd. Saiyad Umar Saiyad and Ors. vs.
State of Gujarat, (1995 (3) SCC 610), that the
burden is on the prosecution to prove due compliance of Section 50 of the
N.D.P.S. Act. It is sufficient to say that in the present case, the High Court
has gone into this question and recorded a clear finding that there was
compliance of Section 50 of the N.D.P.s. Act inasmuch as the accused was given
the option specified in the provision and on exercise of the at option by him,
he was searched in the presence of a Gazetted Officer.
Learned
counsel or the petitioner further submitted that another requirement of Section
50 of the N.D.P.S. Act is that the accused should also be given the option to
choose whether he wanted to be searched in the presence of a Gazetted Officer
or in the presence of a magistrate. It is submitted that this further option
was not given to the petitioner in the present case. We are unable to accept
such a construction of Section 50 of the N.D.P.S. Act, he provision only
requires the option to be given to the accused to say whether he would like to
be searched in the present of a Gazetted Officer of a Magistrate; and on
exercise of that option by the accused, it is for the officer concerned to have
the search made in the presence of the nearest Gazetted Officer or the nearest
Magistrate whosoever is conveniently available for the purpose in order to
avoid undue delay in completion of that exercise. 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 like to be searched by the officer taking the search or
in the presence of the nearest available Gazette 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.
Learned
counsel also referred to an order dated 8.1.1996 made in Special Leave Petition
(Crl) No. 2546 of 1995 - Raghbir Singh vs. State of Haryana - wherein, according
to him, a similar question has been referred for decision by a 3-Judge Bench on
the basis that no decision so far has decided that question involved in the
second submission made by him. It is sufficient to say that there being no
decision taking a contrary view, and in our opinion, the construction being
plain, it is unnecessary for us to refer this case to a 3-Judge Bench.
Special
leave petition is dismissed.
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