REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1079 OF 2002

NARCOTICS CENTRAL BUREAU                      ... Appellant

                VERSUS

SUKH DEV RAJ SODHI                            ... Respondent

J U D G M E N T   

GANGULY, J.

Heard learned counsel for the appellant.  Despite  

notice, none appears for the respondent.

This is an appeal by the Narcotics Central Bureau  

impugning judgment and order dated 11.01.2002 passed by the  

High Court whereby the High Court, on consideration of the  

facts and the legal position of the case, was pleased to  

hold  that  the  mandatory  provision  of  Section  50  of  the  

Narcotic  Drugs  and  Psychotropic  Substances  Act,  1985  

(hereinafter  referred  to  as  'NDPS  Act')  has  not  been  

complied with and the violation of the said Act has vitiated  

the  conviction  and  on  that  ground,  the  High  Court  was  

pleased to set aside the conviction and did not examine any  

other fact of the case.  In this appeal also, we do not go  

into other factual aspects.

...2.

CRIMINAL APPEAL NO. 1079 OF 2002

.2.

It is not in dispute that pursuant to the High  

Court's order, the respondent is set at liberty.

Now,  the  learned  counsel  for  the  appellant  

submits that in the instant case, from the search notice (at  

Annexure  P-1),  it  will  appear  that  the  requirement  of  

Section 50 of the NDPS Act has been complied with.  From the  

said notice, it appears that the accused was informed that  

he has the option of being searched either in the presence  

of gazetted officer or Magistrate and it appears that the  

accused wanted to be searched in the presence of gazetted  

officer.  The learned counsel for the appellant submits that  

by  giving  the  option  to  the  accused,  the  appellant  has  

complied with the requirement under Section 50 of the NDPS  

Act.

The  obligation  of  the  authorities  under  

Section 50 of the NDPS Act has come up for consideration  

before  this  Court  in  several  cases  and  recently,  the  

Constitution Bench of this Court in the case of  Vijaysinh  

Chandubha Jadeja v. State of Gujarat [(2011) 1 SCC 609] has  

settled this controversy.  The Constitution Bench has held  

that  requirement  of  Section  50  of  the  NDPS  Act  is  a  

mandatory requirement and the provision of Section 50 must  

be very strictly construed.

...3.

CRIMINAL APPEAL NO. 1079 OF 2002

.3.

From the perusal of the conclusion arrived at  

by  this  Court  in  Vijaysinh  Chandubha  Jadeja's  case,  it  

appears that the requirement under Section 50 of the NDPS  

Act is not complied with by merely informing the accused of  

his  option  to  be  searched  either  in  the  presence  of  a  

gazetted officer or before a Magistrate.  The requirement  

continues  even  after  that  and  it  is  required  that  the  

accused  person  is  actually  brought  before  the  gazetted  

officer or the Magistrate and in Para 32, the Constitution  

Bench made it clear that in order to impart authenticity,  

transparency and creditworthiness to the entire proceedings,  

an endeavour should be made by the prosecuting agency to  

produce the suspect before the nearest Magistrate.   

That  being  the  law  laid  down  by  the  

Constitution  Bench  of  this  Court  on  interpretation  of  

Section  50  of  the  NDPS  Act,  we  do  not  think  that  the  

obligation under Section 50 of the Act has been discharged  

statutorily by the appellant in this case.  We, therefore,  

find no reason to interfere with the finding made by the  

High court.  The appeal is, accordingly, dismissed.

................., J. [ASOK KUMAR GANGULY]

................., J. [DEEPAK VERMA]

NEW DELHI; MAY 20, 2011.