Narcotics Central
Bureau Vs. Sukh Dev Raj Sodhi
J U D G M E N T
GANGULY, J. Heard learned
counsel for the appellant. Despite notice, none appears for the respondent.
1.
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.
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.
3.
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.
4.
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 credit worthiness
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.
Back
