BABULAL 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. Negi 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 accuseds 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 Subudhi v. State of 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. AH. Khan, Counsel for CBN, Neemuch pointed by referring to the case diary that there has been due compliance of provisions of Section 57 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 Conditions under which search of persons shall be conducted. - (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate, (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in Sub-section (1), (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, till he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made, (4) No female shall be searched by any one excepting a female.T

(3.) The words take such person used in Sub-section (1) are very important. So also words the Gazetted Officer or Magistrate before whom any such person is brought used in Sub-section (3) are important. The words T1take and brought used invariably indicate that the person apprehended by raiding party has to be taken before a Magistrate or Gazetted Officer and if such person is brought before a Magistrate or Gazetted Officer and if there is no ground for search, such person be discharged forthwith. If there are reasons for taking search, such Magistrate or Gazetted Officer should direct such search in his presence. Therefore, the Legislature has taken special care to see that search of such accused should be taken before an independent person who happens to be a Magistrate or Gazetted Officer so as to see that the accused should get all necessary protection offered by the law. Taking a person with the raiding party makes such person impliedly interested in success of the raid. Atleast, he cannot be said to be totally independent of the work done by the raiding party in the said raid.