STATE OF PUNJAB Vs. LABH SINGH

JUDGEMENT

(1.) Leave granted.

(2.) These appeals arise under the Narcotic Drugs and Psychotropic Substances Act, 1985. The respondents were acquitted on trial on the ground that they were not informed of their valuable right that under Section 50 of the Act they were entitled to be searched in the presence of a Gazetted Officer. Violation thereof vitiates the trial as the accused have the statutory right to be searched. The absence of their information as to the said right is one of the infirmities to the validity of their prosecution.

(3.) The question was considered in State of Punjab v. Balbir Singh. Subsequently, another bench of this court in State of Punjab v. Jasbir Singh has pointed out that it would be open to the search officer to inform the suspect, at the time of search, that he is entitled to be searched in the presence of a Gazetted Officer and also to take in writing from the accused that he has been so informed and that the accused has waived that right. Thus it would form part of the record as contemporaneous evidence. Thereafter, it may not be open to the accused to take the plea of non-compliance of Section 50. It would be for the court to consider, at the trial, whether the officer who conducted the search, had, as a fact, informed the accused of that right and whether the accused had waived that right of being searched only in the presence of a Gazetted Officer. This court held that: