NURMOHMED MUSABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal raises important questions of law which pertains to applicability, interpretation and exposition of provisions of Secs. 41, 42, 43, 50 and 51 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('N.D.P.S. Act').

(2.) The main question which requires our examination and adjudication in light of provisions of N.D.P.S. Act is "whether mandatory requirement of provisions of Sec. 50, required to be observed by the empowered or authorised officer under Sec. 50 for search of person will be attracted, even in case of gazetted officer ? In other words, benefit of mandatory provisions of Sec. 50, whereby, a person to be searched, is entitled to be searched, in presence of a gazetted officer of any of the departments mentioned in Sec. 42 or to the nearest Magistrate, can be claimed by him even when the empowered or authorised officer is a gazetted officer ? So, non-compliance of mandatory provisions of Sec. 50 for search of person under the provisions of Secs. 41, 42 or 43 when the officer himself is a gazetted officer; would it be obligatory on the part of such gazetted officer to inform the person so searched, what will be legal implication in case of failure to inform the person to be searched that he is to be searched in presence of a gazetted officer or a Magistrate ?

(3.) In order to appreciate the merits of the aforesaid question involved in this appeal under the N.D.P.S. Act, it would be expedient to have a glance at the relevant and important skeleton of projection of the facts giving rise to this appeal. In this appeal, the raiding party was headed by police inspector who is admittedly enjoying the status of a gazetted officer.