VIJAYSINH CHANDUBHA JADEJA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is an appeal preferred by the accused against the decision of the Division Bench of the High Court of Gujarat. The appellant herein was found guilty of the offence punishable u/s. 31 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act") and was sentenced to undergo 10 years imprisonment with a fine of Rs. 10 lakhs.

(2.) When the matter came before this Court, the appellant raised a contention that Sec. 50 of the NDPS Act was not duly complied with and the conviction and sentence of the appellant was, therefore, illegal. The appellant relied on a decision of the Constitution Bench of this Court in State of Punjab V/s. Baldev Singh, 1999 6 SCC 172. The contention of the appellant is that the officer, who conducted the search, did not inform him of his right to be searched in the presence of a gazetted officer or a Magistrate. The police only told him that the search on his body will be carried out and whether he wanted to be searched in the presence of any gazetted officer or a Magistrate. The Division Bench of the High Court held that this is sufficient compliance with Sec. 50 of the NDPS Act and the conviction of the appellant was upheld.

(3.) Counsel for the appellant submits that the Constitution Bench in Baldev Singh case has held that it is not enough that the accused be informed or intimated that he would be searched in the presence of a gazetted officer or a Magistrate but he should be informed of his right to be searched in the presence of a gazetted officer or a Magistrate and if there is any violation in this regard, it will be violation of Sec. 50 of the NDPS Act.