BABULAL AND ANR. Vs. UNION OF INDIA

JUDGEMENT

(1.) MR . Bhojwani argued that in the present matter there is no compliance of provisions of Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act) because in the present raid, the raiding party had taken a gazetted officer - Mr. Negt who happens to'be officer of the same department. It is his argument that taking such officer with the Raiding Party and thereafter saying that the accused were searched before a Gazetted Officer will not be in any way the compliance of Section 50 of NDPS Act. He placed reliance on the judgment of Orissa High Court in this context in the matter of Bijaya Kumar Suhudhi v. State of Orissa, reported in 1996 (1) EFR 76 (Orissa). He urged that in view of non-compliance of provisions of Section 50 of NDPS Act, the applicants-accused would be acquitted and, therefore, accused need to be released on bail in view of Section 37 of NDPS Act. He further pointed that there has been no compliance of Section 57 of NDPS Act.

(2.) MR . A. H. Khan, Counsel for CBN, Neemuch pointed by referring to the case diary that there has been due compliance of provisions of Section 50 of NDPS Act. He submitted that the applicants were searched before a Gazetted Officer, and therefore, there has been compliance of provisions of Section 50 of NDPS Act. Section 50 of NDPS Act reads -

(3.) PROVISIONS of Section 50 have been declared to be mandatory by the Supreme Court and in the matter of Balbir Singh v. State of Punjab, 1994 (1) EFR 516 (SC), Supreme Court has made it very clear that being searched before a Magistrate or Gazetted Officer is an important right which is available to a person who has been apprehended as an accused of an offence punishable under NDPS Act. The Investigating Agency cannot be permitted to foil the intention of legislation guaranteeing such an important right available to an accused who is accused of an offence punishable under provisions of NDPS Act by playing tricks. Taking a Gazetted Officer with the raiding party is a clever trick which seems to be used by raiding party for the purpose of showing that raiding party wanted to do necessary compliance in respect of provisions of NDPS Act at the same time foiling such an important right of the accused available to him under provisions of Section 50 of NDPS Act.