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PETITIONER: MANOHAR LAL

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT:       22/01/1996

BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) KIRPAL B.N. (J)

CITATION:  JT 1996 (1)   480        1996 SCALE  (1)477

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The submission of learned counsel for the petitioner is that there  is non-compliance  of Section 50 of the narcotic Drugs and  psychotropic Substances Act, 1985 (for short "the N.D.P.S.  Act")   which  renders   the  conviction   of  the petitioner illegal.  The learned  counsel submitted, placing reliance on  the decision  of this  Court  in  Saiyad  Mohd. Saiyad Umar  Saiyad and Ors. vs. State of Gujarat, (1995 (3) SCC 610), that the burden is on the prosecution to prove due compliance  of  Section  50  of  the  N.D.P.S.  Act.  It  is sufficient to  say that  in the present case, the High Court has gone  into this  question and  recorded a  clear finding that there  was compliance of Section 50 of the N.D.P.s. Act inasmuch as  the accused  was given  the option specified in the provision  and on  exercise of  the at option by him, he was searched in the presence of a Gazetted Officer.      Learned counsel  or the  petitioner  further  submitted that another  requirement of  Section 50 of the N.D.P.S. Act is that  the accused  should also  be given  the  option  to choose whether he wanted to be searched in the presence of a Gazetted Officer  or in  the presence of a magistrate. It is submitted that  this further  option was  not given  to  the petitioner in the present case. We are unable to accept such a construction  of  Section  50  of  the  N.D.P.S.  Act,  he provision only  requires the  option  to  be  given  to  the accused to  say whether  he would like to be searched in the present of  a Gazetted  Officer  of  a  Magistrate;  and  on exercise of  that option  by the  accused,  it  is  for  the officer concerned to have the search made in the presence of the nearest  Gazetted  Officer  or  the  nearest  Magistrate whosoever is conveniently available for the purpose in order to avoid  undue delay  in completion of that exercise. It is clear from  Section 50  of the  N.D.P.S. Act that the option given thereby  to the  accused is  only to choose whether he would like  to be  searched by the officer taking the search or in  the presence of the nearest available Gazette Officer

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or the  nearest available  Magistrate.  The  choice  of  the nearest Gazetted Officer or the nearest Magistrate has to be exercised by  the officer  making the  search and not by the accused.      Learned  counsel   also  referred  to  an  order  dated 8.1.1996 made  in Special  Leave Petition  (Crl) No. 2546 of 1995 -  Raghbir  Singh  vs.  State  of  Haryana  -  wherein, according to  him, a  similar question has been referred for decision by a 3-Judge Bench on the basis that no decision so far  has  decided  that  question  involved  in  the  second submission made  by him.  It is sufficient to say that there being no  decision  taking  a  contrary  view,  and  in  our opinion, the construction being plain, it is unnecessary for us to refer this case to a 3-Judge Bench.      Special leave petition is dismissed.