VIJAYSINH CHANDUBHA JADEJA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The short question arising for consideration in this batch of appeals is whether Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act") casts a duty on the empowered officer to inform the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section

(2.) When these appeals came up for consideration before a bench of three Judges, it was noticed that there was a divergence of opinion between the decisions of this Court in the case of Joseph Fernandez v. State of Goa, (2000) 1 SCC 707, Prabha Shankar Dubey v. State of M.P., (2004) 2 SCC 56 on the one hand and Krishna Kanwar (Smt) alias Thakuraeen v. State of Rajasthan, (2004) 2 SCC 608 on the other, with regard to the dictum laid down by the Constitution Bench of this Court in State of Punjab v. Baldev Singh, (1999) 6 SCC 172, in particular regarding the question whether before conducting search, the concerned police officer is merely required to ask the suspect whether he would like to be produced before the Magistrate or a Gazetted Officer for the purpose of search or is the suspect required to be made aware of the existence of his right in that behalf under the law. It would be expedient to extract the relevant portion of the order:

(3.) Since the cases have come up before us for a limited purpose of clarification as to the interpretation of Section 50 of the NDPS Act by the Constitution Bench in Baldev Singhs case (supra), we deem it unnecessary to state the background facts, giving rise to these appeals.