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1 - 4 of 4 (0.16 seconds)Section 21 in The Narcotic Drugs And Psychotropic Substances Act, 1985 [Entire Act]
M.K.Mohanan vs The Kerala State Development ... on 22 January, 2009
It is contended that in K. Mohanan vs.
State of Kerala, 2000 SCC (Cri) 1228 the Hon'ble Supreme Court clearly held
that as per the mandate of Section 50 if the accused who is subjected to search is
merely asked whether he is required to be searched in the presence of a
Magistrate or a Gazetted Officer it cannot be treated to be a communicating to
him that he had a right under law to be searched so. It is contended that neither
does the Section 50 notice nor the testimony of the PW11 who is the
investigating officer suggest that the Appellant was informed of any such right.
Prabha Shankar Dubey vs State Of Madhya Pradesh on 2 December, 2003
"22. In view of the foregoing discussion, we are of the firm opinion
that the object with which right under Section 50(1) of the NDPS
Act, by way of a safeguard, has been conferred on the suspect, viz.
to check the misuse of power, to avoid harm to innocent persons
and to minimise the allegations of planting or foisting of false cases
by the law enforcement agencies, it would be imperative on the
part of the empowered officer to apprise the person intended to be
searched of his right to be searched before a gazetted officer or a
Magistrate. We have no hesitation in holding that in so far as the
obligation of the authorised officer under Sub-section (1) of
Section 50 of the NDPS Act is concerned, it is mandatory and
requires a strict compliance. Failure to comply with the provision
would render the recovery of the illicit article suspect and vitiate
the conviction if the same is recorded only on the basis of the
recovery of the illicit article from the person of the accused during
such search. Thereafter, the suspect may or may not choose to
exercise the right provided to him under the said provision. As
observed In Re: Presidential Poll MANU/SC/0047/1974 : (1974) 2
SCC 33, it is the duty of the courts to get at the real intention of the
Legislature by carefully attending to the whole scope of the
provision to be construed. "The key to the opening of every law is
the reason and spirit of the law, it is the animus imponentis, the
intention of the law maker expressed in the law itself, taken as a
whole." We are of the opinion that the concept of "substantial
compliance" with the requirement of Section 50 of the NDPS Act
introduced and read into the mandate of the said Section in Joseph
Fernandez (supra) and Prabha Shankar Dubey (supra) is neither
borne out from the language of Sub-section (1) of Section 50 nor it
is in consonance with the dictum laid down in Baldev Singh's case
(supra). Needless to add that the question whether or not the
procedure prescribed has been followed and the requirement of
Section 50 had been met, is a matter of trial. It would neither be
possible nor feasible to lay down any absolute formula in that
Crl. Appeal No. 493/199 Page 4 of 5
behalf. We also feel that though Section 50 gives an option to the
empowered officer to take such person (suspect) either before the
nearest gazetted officer or the Magistrate but in order to impart
authenticity, transparency and creditworthiness to the entire
proceedings, in the first instance, an endeavour should be to
produce the suspect before the nearest Magistrate, who enjoys
more confidence of the common man compared to any other
officer. It would not only add legitimacy to the search proceedings,
it may verily strengthen the prosecution as well."
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