TOYE MOBKA Vs. STATE DELHI ADMINISTRATION

JUDGEMENT

(1.) I have heard the parties. This is an appeal directed against the order of conviction dated 16.9.1992, passed by Mr. S.L. Khanna.ASJ. The appellant has been convicted under Sections21/28 read with Section 23 of the Narcotic Drugs & Psychotropic Substances Act, 1985 and sentenced to undergo rigorous imprisonment for a term of ten years plus a fine of Rs. I lakh, in default whereof rigorous imprisonment for another one year.

(2.) Briefly staling, the facts of the case are that the appellant, who is a Nigerian National, was leaving the country on the night between 20th and 21 st May, 1990 and before his departure, he was apprehended as the Immigration Authorities had the information, according to the Immigration Officer, who has been examined as a witness, that some Nigerian Nationals are trying to smuggle narcotics out of the country. The appellant was searched in the present case straightaway without being informed of his right that he, if he so desired, could be searched in the presence of a Gazetted Officer or a Magistrate. Admittedly, no such caption was given in the present case. There are some other points also urged before me, but it will not be necessary in the light of the above facts to dwell upon those grounds because in my opinion, this appeal can be disposed of on the question of non-compliance of the mandatory provisions of Section 50 of NDPS Act by the officers, who took a personal search of the appellant. Section 50 of NDPS Act reads as under :

(3.) According to provisions of Section 50, the accused must be informed of his right, and if he so wishes, he can be searched in the presence of the Gazetted Officer or the nearest Magistrate. It is not disputed that no such information by a written notice or otherwise as contemplated under Section 50 of NDPS Act, was given to the appellant. Even fard jamatalashi is vague and silent of such an option having been offered. In the case of State of Punjab v. Balbir Singh, reported as JT 1994 (2) SC 108, the Hon'ble Supreme Court has held that it was imperative on the part of the officer intending to search, to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate. The Hon'ble Supreme Court has held this provision to be mandatory.