BHUPATJI SHAKARAJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS Larger Bench has been constituted for considering the following question which as per the order made on 30th January 2003 by the Division Bench was required to be considered by a Larger Bench in view of the conflicting decisions of two Division Benches of this Court: Whether the option offered to the accused to ascertain his willingness to be searched in presence of a Magistrate without referring to be searched in presence of a Gazetted Officer or vice versa would amount to non compliance of the provisions envisaged under S.50 of the N.D.P.S.Act?

(2.) THE appellant has been convicted for the offences under S.21 and 22 of the Narcotic Drugs &Psychotropic Substances Act,1985 by the Additional City Sessions Judge,Court No.15 in Sessions Case No.92 of 1996 and has been sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.1 lakh,in default of which,to undergo further imprisonment of one year.

(3.) WHEN the appeal was called out for hearing before the Division Bench,the Division Bench noticed that there were conflicting views expressed by two different Division Benches of this Court.In Ramanbhai Becharbhai Rami v.State of Gujarat,reported in 2002(3)GLR 2100,on which reliance was placed on behalf of the appellant,the question put to him by the authorised officer was whether he wanted to be searched in his presence or in the presence of some superior officer and there was no offer made for search in presence of the Magistrate.The Division Bench held that this amount to a non compliance of the mandatory provisions of S.50 of the Act and therefore,the accused was entitled to be acquitted.In Pirubhai Noorbhai Shaikh v.State of Gujarat,reported 2002(3)GLR 2394,where the question asked by the officer was whether the accused wanted to be searched before a Magistrate,but option to be searched before a Gazetted Officer was not given,the Division Bench held that there was sufficient compliance with the provisions of S.50 of the Act.That is how the matter poses the question as to whether the accused was entitled to be given an option to choose between Gazetted Officer and Magistrate while informing him about his right to be taken for search before a Gazetted Officer or a Magistrate under the provisions of S.50 of the Act.