Officer, Not Accused, Picks Gazetted Officer or Magistrate Under Section 50 NDPS: Supreme Court

The petitioner, convicted under the NDPS Act, sought special leave, contending that non-compliance with Section 50 rendered his conviction illegal and, relying on Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat, that the burden was on the prosecution to prove compliance (para 1). The High Court had recorded a clear finding that he was given the option under the provision and, on exercising it, was searched in the presence of a Gazetted Officer (para 1). He further contended that he should also have been allowed to choose between a Gazetted Officer and a Magistrate, and pointed to an order of 8.1.1996 in Raghbir Singh v. State of Haryana referring a similar question to a three-Judge Bench (paras 2-3).

On the first point, the Court found it sufficient that the High Court had gone into the question and recorded a clear finding of compliance with Section 50: the accused was given the option and, on exercising it, was searched before a Gazetted Officer (para 1). On the second, the Court was "unable to accept such a construction of Section 50" (para 2). The provision only requires the accused to be given the option to say whether he would like to be searched in the presence of a Gazetted Officer or a Magistrate. Once he exercises it, it is for the officer concerned to have the search made before 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" (para 2). The choice between the two "has to be exercised by the officer making the search and not by the accused" (para 2). On the Raghbir Singh reference, there was no decision taking a contrary view and, the construction being plain, it was unnecessary to refer this case to a three-Judge Bench (para 3).