REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1079 OF 2002
NARCOTICS CENTRAL BUREAU ... Appellant
VERSUS
SUKH DEV RAJ SODHI ... Respondent
J U D G M E N T
GANGULY, J.
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.
