2. To be referred to the Reporter or not? : YES =

3. Whether Their Lordships wish to see the fair copy : NO of the judgement? =

4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? =

5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? =

= -------------------------------------------------------------- BHUPATJI SHAKARAJI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 548 of 1997 MR DIPAK R DAVE for the Appellant MR.S.N.SHELAT, ADVOCATE GENERAL with MR.A.Y.KOGJE, A.P.P. for the Respondent

= --------------------------------------------------------------

CORAM : MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE R.P.DHOLAKIA and MR.JUSTICE A.L.DAVE

Date of decision: 24/04/2003

ORAL JUDGEMENT

(Per : MR.JUSTICE R.K.ABICHANDANI for the Court)

1. This Larger Bench has been constituted for considering the following question which as per the order made on 30th January 2003 by the Division Bench was required to be considered by a Larger Bench in view of the conflicting decisions of two Division Benches of this Court :

"Whether the option offered to the accused to ascertain his willingness to be searched in presence of a Magistrate without referring to be searched in presence of a Gazetted Officer or vice versa would amount to non-compliance of the provisions envisaged under Section 50 of the NDPS Act?"

2. The appellant has been convicted for the offences under Sections 21 and 22 of the Narcotic Drugs & Psychotropic Substances Act, 1985 by the Additional City Sessions Judge, Court No.15 in Sessions Case No. 92 of 1996 and has been sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.1 lakh, in default of which, to undergo further imprisonment of one year.

3. The appellant was caught while fleeing by the raiding party on 10th December 1995 when he was suspected of the offences under the Act on a secret information received by the police inspector. When asked as to whether he required that he be searched in presence of the Magistrate, the appellant refused the offer and was thereupon searched by the police inspector, during which contraband articles, namely, 139 packets of brown sugar (weighing 7.5 gms.), were recovered and seized in presence of the panchas. He was charged for the offences under Section 21 and 22 of the said Act and also under Section 66(1)(b) of the Bombay Prohibition Act and at the end of the trial, was convicted and sentenced for these offences.

4. When the appeal was called out for hearing before the Division Bench, the Division Bench noticed that there were conflicting views expressed by two different Division Benches of this Court. In Ramanbhai Becharbhai Rami v. State of Gujarat, reported in 2002(3) GLR 2100, on which reliance was placed on behalf of the appellant, the question put to him by the authorised officer was whether he wanted to be searched in his presence or in the presence of some superior officer and there was no offer made for search in presence of the magistrate. The Division Bench held that this amounted to a non-compliance of the mandatory provisions of section 50 of the Act and therefore, the accused was entitled to be acquitted. In Pirubhai Noorbhai Shaikh v. State of Gujarat, reported 2002(3) GLR 2394, where the question asked by the officer was whether the accused wanted to be searched before a Magistrate, but option to be searched before a Gazetted Officer was not given, the Division Bench held that there was sufficient compliance with the provisions of Section 50 of the Act. That is how the matter poses the question as to whether the accused was entitled to be given an option to choose between Gazetted Officer and Magistrate while informing him about his right to be taken for search before a Gazetted Officer or a Magistrate under the provisions of Section 50 of the Act.

5. The learned counsel for the appellant contended that, in view of the decision of the constitution bench of the Supreme Court in State of Punjab v. Baldev Singh, reported in AIR 1999 SC 2378, the authorised officer was required to inform the suspected person under the provisions of Section 50 of the Act, about his right to have a search made in presence of a Gazetted Officer or a Magistrate and in that process, he was required to give an option to the suspected person to choose either between a Magistrate or a Gazetted Officer. It was submitted that, in the present case, the authorised officer had informed the accused about his right to be searched before a Magistrate by asking him whether he would like to be taken for search to a Magistrate and there was no mention made of any Gazetted Officer. The accused refused the offer of being taken for search to a Magistrate, but if he were given an option to choose being searched before either a Magistrate or a Gazetted Officer, he might have exercised his option by requiring his search to be made before a Gazetted Officer. Therefore, there is denial of a valuable right conferred on the appellant under Section 50(1) of the Act and the question referred should be answered in his favour.

5.1 In support of his contention, the learned counsel for the appellant relied upon the following decisions :

[a] Decision of the Supreme Court in State of Punjab v. Baldev Singh, reported in AIR 1999 SC 2378 was cited for the propositions, which are culled out in paragraph 55 of the judgement, in which it has been, inter alia, laid down that when an empowered officer or a duty authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under sub-section (1) of section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. It was held that such information may not necessarily be in writing. It was also held that failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused. The Supreme Court further held that failure to inform the concerned person of his right as emanating from sub-section (1) of section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law.

[b] Decision of the Supreme Court in Beckodan Abdul Rahiman v. State of Kerala, reported in (2002) 4 SCC 239 was cited to point out that, in paragraph-5 of the judgement, while considering whether there was compliance the provisions of section 50 when the authorised officer asked the accused whether he should be searched in presence of senior officer or a Gazetted Officer, the Supreme Court held that the accused was required to be apprised of his right conferred under Section 50 giving him the option to search being made in the presence of a Gazetted Officer or a Magistrate. It was held that the accused was not shown to have been apprised of his right nor any option offered to him for search being conducted in the presence of the Magistrate.

[c] The decision of the Supreme Court in T.Hamza v. State of Kerala, reported in (2000) 1 SCC 300 was a case where the authorised officer asked the suspected person whether presence of a Gazetted Officer was required, after the accused person had taken out the bags and handed them over to the authorised officer, and in that context, the Supreme court held that the provisions of section 50(1) of the Act were not complied with, which fact was not seriously disputed before the Court as noted in paragraph 14 of the judgement.

[d] The decision of the Supreme Court in Laleshwar Rajak Kalanand Dhobi v. State of Gujarat, reported in (2002) 7 SCC 704, holding that since the provisions of section 50 were not complied with, the trial stood vitiated, was a case in which the police officer who carried out the search did not inform the accused about his right flowing from section 50 of the Act. It was held that it was obligatory for the prosecution to inform the accused of his right to be search by a Gazetted Officer or a Magistrate in order to comply with the mandatory requirement of section 50.

[e] The decision of the Supreme Court in K. Mohanan v. State of Kerala, reported in (2000) 10 SCC 222 was cited to point out that, in paragraph 6 of the judgement, the Supreme Court has held that, when the accused who was subjected to search was merely asked whether he required to be searched in the presence of a Gazetted Officer or a Magistrate, it cannot be treated as communicating to him that he had a right under law to be searched so.

[f] The decision of the Supreme Court in Vinod v. State of Maharashtra, reported in (2002)8 SCC 351 was a case in which the trial Court had concluded that the information under Section 50 was not given to the appellant, as noted in paragraph 3 of the judgement. In that background, the Supreme Court held that, before conducting the search, the police officer concerned cannot merely ask the accused whether he would like to be produced before a Gazetted Officer or a Magistrate, but should inform him of his right in that behalf under the law.

[g] The decision of the Supreme Court in Union of India v. Jassuram @ Jasraj, reported in 2002(6) Supreme 22 was cited to point out that it was held that the mandatory requirements of section 50 were not complied with in that case. The Court observed; "In this case, it does not appear that the accused were given any right of their search being conducted in the presence of a Magistrate as well". It was held that the High Court was justified in acquitting the accused for violation of mandatory provisions of section 50 of the Act.

[h] In Saleem v. State of Kerala, reported in JT 2002 (5) 387 was a case where the prosecution had alleged that the appellant was found in possession of ganja. In paragraph 5 of the judgement, the Supreme Court held that section 50 confers a right upon the accused to exercise his option as to whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate, which had not "concededly been done in this case". As the mandatory provisions of section 50 of the Act were not complied with, it was held that the High Court was not justified in convicting and sentencing the accused.

[i] Decision of the learned Single Judge of the Delhi High Court in Badshah v. State, reported in 2000 Cri.L.J. 2119 was cited to point out that, in a case where the suspected person was informed that if he so desired, he could be produced before the ACB Sabzi Mandi for conducting his search, the Court held that there was no full compliance of section 50 of the Act and substantial or partial compliance would be violative of section 50 of the Act.

[j] Decision of the Bombay High Court in Sadruddin Mohamed Husein Jundah Shah v. D.C.B. CID, Narcotic Cell, Azad Maidan Unit, Bombay, reported in 2000 Cri.L.J. 2329 was a case where the appellant was only asked whether he wanted to be searched by special executive Magistrate or any Magistrate, as noted in paragraph 5 of the judgement, and in that context, the Court, in paragraph 8 of its judgement, held that failure to apprise the accused whether he would like to be searched before a Magistrate, violated his right under Section 50(1) of the Act.

[k] Division Bench of this Court in Ramanbhai Becharbhai Rami v. State of Gujarat, reported in 43(3) GLR 2100, which is one of the two conflicting judgements giving rise to the present reference, has been relied upon for the proposition that the duty is cast upon the concerned officer under Section 50 of the Act to inform the accused of his right of being searched in presence of either Gazetted Officer or a Magistrate and the concerned officer ought to have given such two options to the accused who could exercise the option out of the two, namely, a Gazetted Officer or a Magistrate.

6. The learned Advocate General submitted that, in Baldev Singh's case, Constitution Bench of the Supreme Court did not decide the question whether there was an option to be given to the suspected person to be searched before a Gazetted Officer or a Magistrate. It was submitted that the suspected person had no right to choose between a Gazetted Officer or a Magistrate, and his only right under Section 50 was to be informed that if he so desired, he would be taken for being searched to a Gazetted Officer or a Magistrate. It was submitted that whether the suspected person should be taken to a Gazetted Officer or to a Magistrate was a matter to be decided by the authorised officer, and not by the suspected person, who had no right to opt between a Gazetted Officer and a Magistrate. It was submitted that the Division Bench in R.B.Rami's case was not justified in not following the decision of the Larger Bench of the Supreme Court in Raghbir Singh v. State of Haryana, reported in AIR 1996 SC 2926, in which the offer whether the suspected person would require himself to be taken to the Magistrate without referring to a Gazetted Officer, was held to be a due compliance with the provision of section 50 of the Act.

6.1 The learned Advocate General, in support of his contentions, cited the following decisions :

[a] The decision of the Supreme Court in Manohar Lal v. State of Rajasthan, reported in AIR 1996 SC 2880 was cited to point out that the Supreme Court, in context of the provisions of section 50 of the said Act, held that it was clear from section 50 of the N.D.P.S. Act that the option given thereby to the accused was only to choose whether he would like to be searched by the officer taking the search or in the presence of the nearest available Gazetted Officer 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. It was observed in paragraph 3 of that judgement that, a similar question was referred for decision by a 3-Judge Bench. That decision in Raghbir Singh v. State of Haryana is reported in the same Volume at page 2926 in which the Larger Bench of 3-Judges, concurring with the view taken in Manohar Lal's case, held that the option under Section 50 of the Act, as it plainly reads, is only of being searched in the presence of such senior officer, and that there was no further option of being searched in the presence of either a Gazetted Officer or of being searched in the presence of a Magistrate. It was held that it was for the police officer who is to conduct the search to conduct it in the presence of whoever is the most conveniently available Gazetted Officer or Magistrate.

[b] Reference was also made to the decision in Surinder Nath Dewan v. State of Punjab, reported in AIR 1994 SC 1871, with a view to point out, that the Supreme Court laid down therein that it was obligatory on the part of the officer to inform the person to be searched of his right to be taken to a Magistrate or a Gazetted Officer, but, the controversy involved in the present reference as to whether the suspected person had a right to choose between a Gazetted Officer and a Magistrate was not involved even in that case.

[c] The Constitution Bench judgement in State of Punjab v. Baldev Singh, reported in AIR 1999 SC 2378 was referred with a view to point out that the question which is involved in the present reference, namely, whether the suspected person had a right to be given an option to choose either between a Gazetted Officer or a Magistrate, was not before the Supreme Court in that case.

[d] Decision of the Supreme Court in Union of India v. K.S.Subramaniam, reported in AIR 1976 SC 2433 was cited for the proposition that it was a practice that has crystallized in to a rule of law declared by the Supreme Court, that the proper course for a High Court was to try to find out and follow the opinions expressed by larger benches of the Supreme Court in preference to those expressed by smaller benches of the Court.

[e] The decision of the Supreme Court in Commissioner of Income-tax v. M/s Sun Engineering Works (P) Ltd., reported in AIR 1993 SC 43 was cited to point out that the Supreme Court held that it was neither desirable nor permissible to pick out a word or a sentence from the judgement of the Supreme Court, divorced from the context of the question under consideration and treat it to be the complete law declared by the Supreme Court.

7. The relevant provisions of section 50 of the Act, which fall for our consideration, read as under :

"50. 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 be 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] xxxxx

[3] The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

[4] xxxxx

[5] When any officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973.

[6] After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."

8. Section 50 of the Act lays down conditions under which search of a person shall be conducted when any officer duly authorised under Section 42 of the Act is about to search such person under Sections 41, 42 or 43. If at the time when the search is about to be conducted, such person requires that the authorised officer should take him to any nearest Gazetted Officer of any of the Departments mentioned in section 42 or to the nearest Magistrate, the authorised officer shall take such person to a nearest Gazetted Officer or a Magistrate. The said provisions, thus, give a right to the suspected person, when he is about to be searched by the authorised officer to require that he be taken to either a Gazetted Officer or a Magistrate, when he does not want to be searched at that place by the authorised officer. By judicial interpretation, this has been interpreted to imply that it is for the authorised officer to inform the suspected person of his right to be taken for search to a Gazetted Officer or a Magistrate.

9. The purpose underlying the provisions of section 50 is to enable a person to object against being searched by the authorised officer and to require to be taken either to a nearest Gazetted Officer or to a nearest Magistrate and get it decided there whether he should be searched or not. This becomes clear from the provision of sub-section (3) of section 50 which lays down that the Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person, but otherwise shall direct that search be made. The provision, thus, gives the suspected person a right to object against being searched by the authorised officer and instead require that he be taken either to a Gazetted Officer or to a Magistrate for a decision whether he should at all be searched and if it is decided that he should be searched, then the search be made under the direction of such authority before whom he has been taken. When such person requires that he be taken either to a Gazetted Officer or a Magistrate, and if he is directed to be searched there, he stands the risk of getting the contraband article recovered from him in the presence of an independent superior officer or a Magistrate, but, at the same time, if he does not possess such article on his person, he will stand a complete chance of demonstrating that fact in the presence of the superior officer or the Magistrate before whom he is taken and in which place, there would, ordinarily, be no possibility of his being wrongly implicated by planting any contraband article on him. The whole purpose of the option is to enable a person to require that he be taken either to a Gazetted Officer or a Magistrate, as may be the nearest, who will decide upon the search being made, and, if directed to be made, to bring about the authentic outcome of the search which may result in the discharge of the suspected person, if nothing is recovered from him that may amount to a contravention of any of the provisions of the Act. Thus, the option contemplated by section 50 is not an option to choose between the nearest Gazetted Officer of any of the departments referred to in section 42 and the nearest Magistrate, but an option to require that, instead of search by the authorised officer, he be taken for search in presence of either of them.

10. The suspected person cannot insist that he should be taken to a nearby Gazetted Officer and not to a nearby Magistrate who may be nearer than the nearby Gazetted Officer or vice versa. When he exercises his option, he requires that he be taken to a Gazetted Officer or a Magistrate and not to any particular officer who is the Gazetted Officer or a particular Magistrate. It may happen that, in the same vicinity, there may be available, several Gazetted officers or Magistrates who are all equidistance from the place where the suspected person is about to be searched by the authorised officer, then, if the option to choose between a Gazetted Officer and a Magistrate is recognized, it will stand further extended to choosing from amongst any of the Gazetted officers of the departments named in section 42 or any of the many Magistrates who may be available there. That cannot be the intention of the Legislature, when the provision clearly indicates only an option of not being searched at the time and place where the authorised officer is about to search him, but to require that he be taken to either a Gazetted Officer or a Magistrate for deciding where he should be searched, and eventually to be searched in the presence of the Gazetted Officer or the Magistrate before whom he is taken, if the search is directed by such Gazetted Officer or the Magistrate, as the case may be. Therefore, depending upon the convenience of the situation, an authorised officer can ask the suspected person, whether he objects to being searched by him or requires to be taken to a nearby Magistrate without referring to a Gazetted Officer, or, to a nearby Gazetted Officer without referring to a Magistrate. It is entirely for the authorised officer to take him either to a Magistrate or to a Gazetted Officer since the suspected person has no right to choose between a Gazetted Officer and a Magistrate, and, if there are many, any particular Gazetted Officer or a Magistrate. The Legislature has placed the Gazetted officers of the departments mentioned under Section 42 and the Magistrates on the same footing for the purpose of exercising functions under sub-section (3) of section 50 of the Act and it would be for the authorised officer to decide to take the suspect person either to a Gazetted Officer or a Magistrate, as may according to him be the nearest available for the purpose unless he proceeds to search himself in accordance with the provisions of sub-sections (5) and (6) of Section 50 of the Act, in which event, there would be no need to give any option to the suspected person under Clause (1) of Section 50.

11. The learned counsel for the appellant argued that, in view of the decision of the Constitution Bench in Baldev Singh's case (supra), it was incumbent upon the authorised officer to have asked the accused whether he requires that he should be taken to a Gazetted Officer or a Magistrate. By asking whether he wanted to be taken for search to the Magistrate and not referring to the other option of a Gazetted Officer, the authorised officer violated the provisions of section 50 and therefore, the conviction was vitiated. The decision of the Constitution Bench in Baldev Singh's case (supra) is an authority for the proposition that it is imperative on the authorised officer to inform the concerned person of his right under sub-section (1) of section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search, and that failure to do so would cause prejudice to an accused. The Supreme Court held (in paragraph 24 of the judgement) that there is, unanimity of judicial pronouncements to the effect that it is an obligation of the empowered officer and his duty before conducting the search of the person of a suspect, that he has the right to require his search being conducted in the presence of a Gazetted Officer or a Magistrate, and that failure to so inform the suspect of his right, would render the search illegal, because, the suspect would not be able to avail of the protection which is in-built in section 50. If the concerned person requires, on being so informed by the empowered officer or otherwise, that his search be conducted in the presence of a Gazetted Officer or a Magistrate, the empowered officer is obliged to do so and failure on his part to do so would also render the search illegal and the conviction and sentence of the accused bad.

11.1 Admittedly, there was no controversy before the Supreme court of the nature which is referred to us as to whether the suspected person had a right to be given an option to choose between a Gazetted Officer and a Magistrate for being taken for search. In fact, that controversy was resolved by the Supreme Court by the Larger Bench in Raghbir Singh's case (supra), to which that dispute was earlier referred, when it held that; "The option under Section 50 of the Act, as it plainly reads, is only of being searched in the presence of such senior officer. There is no further option of being searched in the presence of either a Gazetted Officer or of being searched in the presence of a Magistrate." It was held that once the person to be searched opts to be searched in the presence of such senior officer, it is for the police officer who is to conduct the search to conduct it in the presence of whoever was the most conveniently available Gazetted Officer or Magistrate.

11.2 The Larger Bench in Raghbir Singh's case (supra) concurred with the following view taken in Manohar Lal's case quoting it in paragraph 8 of the judgement :

"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 making the search or in the presence of the nearest available Gazetted Officer 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."

12. The Constitution Bench, in Baldev Singh's case, has not either expressly or impliedly disturbed the above ratio of Raghbir Singh's case or Manohar Lal's case and by no stretch of imagination can it be said that these decisions are impliedly overruled, when the controversy, that the accused had also a further option of being searched in the presence of either a Gazetted Officer or of being searched in the presence of a Magistrate, which was specifically resolved in Raghbir Singh's case, was not at all raised before the Constitution Bench in Baldev Singh's case in which decisions one of the Hon'ble Judges was common and therefore, the point could never have been missed even though Raghbir Singh's case was not referred to, perhaps because, that controversy did not arise before the Constitution Bench. The Division Bench in Ramanbhai Becharbhai Rami's case (supra), having noticed the decision of the larger bench of the Apex Court in Raghbir Singh's case, held that the authority of Raghbir Singh's case (supra, decided on 29th January 1996) and the case of Saleemuddin Jugan v. State of Gujarat, reported in 1999(3) GLR 2581 (decided on 6-9-1999), in which the ratio of Raghbir Singh's case was applied by the earlier Division Bench of this Court, were not applicable, because, "possibly the Division Bench of this Court might not have come across the case of State of Punjab v. Baldev Singh (supra). With respect, the Division Bench overlooked the aspect that the point at issue regarding option to choose between either a Gazetted Officer or a Magistrate which was resolved by the Larger Bench of the Apex Court in Raghbir Singh's case was not at all under consideration in Baldev Singh's case and therefore, the ratio of Raghbir Singh's case, which was in no way disturbed by the decision of the Constitution Bench in Baldev Singh's case, continued to operate. The subsequent decision of the Apex Court in Beckodan Abdul Rahiman's case (supra) did not notice the Larger Bench decision in Raghbir Singh's case and therefore, could not have been followed by the Division Bench in view of the decision of the Supreme Court in Union of India v. K.S.Subramaniam, reported in AIR 1976 SC 2433, in which the Supreme Court, in paragraph 12 of its judgement, held as under :

"We do not think that the difficulty before the High Court could be resolved by it by following what it considered to be the view of a Division Bench of this Court in two cases and by merely quoting the views expressed by larger benches of this Court and then observing that these were insufficient for deciding the point before the High Court. It is true that in each of the cases cited before the High Court, observations of this Court occur in a context different from that of the case before us. But, we do not think that the High Court acted correctly in skirting the views expressed by the larger benches of this Court in the manner in which it had done this. The proper course for a High Court, in such a case, is to try to find out and follow the opinions expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court. That is the practice followed by this Court itself. The practice has now crystallized into a rule of law declared by this Court. If, however, the High Court was of opinion that the views expressed by larger benches of this Court were not applicable to the facts of the instant case, it should have said so giving reasons supporting its point of view."

12.1 We are not shown any decision of the Supreme Court by a bench of equal or higher strength taking a view different from the one taken by the Larger Bench in Raghbir Singh's case. We hold that there is no conflict between the decision in Raghbir Singh's case and the decision in Baldev Singh's case, and that the decision in Raghbir Singh's case continues to be a binding precedent for the proposition that, under Section 50, the suspected person has no further option of being searched in the presence of either a Gazetted Officer or of being searched in the presence of a Magistrate, and that it is for the police officer who is to conduct the search to conduct it in the presence of whoever is the most conveniently available Gazetted Officer or Magistrate.

13. It may be noticed here that a Larger Bench of the Supreme Court in Joseph Fernandez v. State of Goa, reported in AIR 2000 SC 3502, negatived the contention that the authorised officer should have told the person who was subjected to search that he had a right to be searched, holding that the communication to the accused that if he wished, he could be searched in the presence of a Gazetted Officer or a Magistrate, was an offer which was a communication of the information that the accused has a right to be searched so. It was held that informing the accused that, "If you wish you may be searched in the presence of Gazetted Officer or a Magistrate" cannot be said to be non-compliance with the mandatory provisions contained in section 50 of the Act. The binding effect of this view of the Larger Bench in Joseph Fernandez (supra) decided on 5-10-1999 would not be affected by the observations in paragraph 6 of the judgement in K. Mohanan v. State of Kerala, reported in (2000) 10 SCC 222 on which reliance was sought to be placed on behalf of the appellant.

14. In case of Saleemuddin Jugan v. State of Gujarat, reported in 1999(3) GLR 2581, the Division Bench, in our opinion, had correctly interpreted the provisions of section 50 of the Act, when it held, following the decision in Raghbir Singh's case (supra), that when the authorised officer informed the accused whether he wanted to be searched in the presence of a Gazetted Officer, there was no room for holding that the provision of section 50 was violated. It was held that there was due compliance of the said provision. Even the decision of the Division Bench in case of Pirubhai Noorbhai Shaikh v. State of Gujarat, reported 2002(3) GLR 2394, in our opinion, takes a correct view of the provisions of section 50 when, following Saleemuddin Jugan's case (supra), it holds, in paragraph 11 of the judgement, that: "On plain reading of this provision, it is clear that the concerned officer is required to give an option to the person before carrying out search, namely, whether he would like to be searched in presence of a Gazetted Officer or the nearest Magistrate. Thus, offering of search before either of the authority cannot and will not result in violation of section 50."

15. For the foregoing reasons, we hold that the nature of the option given to the suspected person under Section 50 of the Act is between his being searched by the authorised officer or being taken to either a Gazetted Officer or a Magistrate for the purpose of deciding whether he should be searched under his direction or be discharged if such authority before whom he is brought sees no reasonable ground for search, and that, there is no further right given to the suspected person to choose between a Gazetted Officer or a Magistrate before either of whom he may be taken as may be decided upon by the authorised officer depending upon their availability, distance and other relevant factors. The decision in Ramanbhai Becharbhai Rami (supra) to the extent that it holds that the suspected person has, under Section 50 of the Act, an option to select between a Gazetted Officer and a Magistrate for search purpose, with respect, does not lay down a correct proposition of law, and is not warranted by the provisions of section 50 of the said Act. We hold that asking the suspected person, while explaining that he was about to be searched, whether he would require the search to be made before a Magistrate is sufficient intimation to him of his right under Section 50 of the Act and amounts to due compliance of the mandatory requirement of section 50, even if while asking, the authorised officer referred only to a Magistrate and not to a Gazetted Officer, or, vice versa. The question referred is answered accordingly. The appeal will now be posted before the appropriate Bench for hearing.

16. Before parting with the matter, we are constrained to observe that when any officer is authorised under Section 42 of the Act and acts under Section 50, he is presumed to know that it is imperative for him to inform the suspected person of his right under sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. The authorised officer is presumed to know the mandatory nature of the provisions of Section 50, and about the law declared by the Supreme Court in that context. Having regard to the consequence of non-compliance vitiating the conviction and sentence, stern disciplinary action is called for in every case against the concerned authorised officer where he fails to comply with the provisions of Section 50 on the aspect of informing the suspected person of his right thereunder. Any deliberate or negligent omission by the authorised officer must result in initiation of disciplinary and other action against him under the law by the competent authority. We direct that this may be brought to the notice of the highest authorities in the State Government, the Home Department and the Police Department to prevent any deliberate or negligent breach of the provisions of Section 50 of the NDPS Act. The Registry will send copy of this judgment to the Chief Secretary, Government of Gujarat, for necessary compliance.

[R.K.ABICHANDANI, J.]

[R.P.DHOLAKIA, J.]

[A.L.DAVE, J.]

parmar*