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REPORTABLE  

         IN THE SUPREME COURT OF INDIA  

CRIMINAL APPELLATE JURISDICTION  

 CRIMINAL APPEAL No. 459 OF 2017  

SK RAJU @ ABDUL HAQUE @ JAGGA                      .....APPELLANT            

Versus   

STATE OF WEST BENGAL            .....RESPONDENT  

J U D G M E N T  

Dr Dhananjaya Y Chandrachud  

1 The present appeal, by special leave, is directed against a judgment  

dated 19 February 2016 of a Division Bench of the Calcutta High Court. The  

High Court upheld the conviction of the appellant by the Additional Sessions  

Judge (“ASJ”) and Special Court under the Narcotic Drugs and Psychotropic  

Substances Act 1985 (“the Act”). On 15 February 2014, the ASJ had convicted  

the appellant of an offence punishable under Section 20(b)(ii)(C) of the Act. The

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appellant was sentenced to 14 years of rigorous imprisonment and directed to  

pay a fine of Rs 1,40,000.  

2 The facts of the case are as follows. On 15 November 2011, Sub-

Inspector Prasanta Kr. Das, Narcotics Cell, DD (PW-2) received information that  

a drug dealer would be in the vicinity of Tiljala Falguni Club, 138B/1, Picnic  

Garden Road, near Tiljala Police Station to supply narcotic drugs in the  

afternoon. PW-2 sought permission from the Assistant Commissioner of Police,  

Anti-Narcotics Department, DD to organize a raid (Exhibit-2). Permission was  

granted by the superior officer on the same day and a raiding team consisting  

of PW-2 and others reached the spot at about 12.50 pm. At around 1.40 pm,  

the source of the information pointed out to the appellant who was coming along  

Picnic Garden Road. The appellant was intercepted and detained immediately  

by the raiding party in front of Falguni Club. The appellant was informed about  

the reasons for his detention and the identities of the raiding party were  

disclosed to him. Subsequently, the appellant also disclosed his identity to the  

raiding party. PW-5 was one of the two independent witnesses who agreed to  

be a witness to this search. The appellant was informed about his legal right to  

be searched either in the presence of a magistrate or a gazetted officer (Exhibit-

3). The appellant opted for being searched by a gazetted officer. A gazetted  

officer, Inspector Joysurja Mukherjee (“PW-4”), arrived on the scene at about  

3.20 pm. He provided the appellant with a “second option”. The appellant was  

asked by PW-4 whether he wished to be searched in the presence of a gazetted

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officer or a magistrate (Exhibit-4). Once again, the appellant consented to be  

searched in the presence of a gazetted officer. PW-4 then inquired of the  

appellant whether he wanted to search PW-2 before the latter would carry out  

his search. The appellant agreed to search PW-2 before his own search was  

carried out by PW-2. No narcotic substance was recovered from the person of  

PW-2. PW-2 recovered nineteen “deep brown / blackish broken rectangular  

sheets” from a black polythene packet which was inside a biscuit colour jute  

bag, which the appellant was carrying in his right hand. The sheets were tested  

by PW-2 on the spot with the help of a test kit. The substance was found to be  

charas. The substance was also weighed using a weighing scale. The appellant  

was found to be in possession of 1.5 kilograms of charas. Cash amounting to  

Rs. 2,400/- was recovered from the trouser of the appellant.  

3 Learned counsel for the appellant has argued that there was non-

compliance with Section 42 of the Act. After PW-2 was intimated about the  

appellant’s arrival, he sought permission from the Assistant Commissioner of  

Police, Anti-Narcotics Department. Upon receipt of the letter of permission from  

the Assistant Commissioner, PW-2 proceeded to the place of the occurrence.  

PW-2 admitted in his cross-examination that he was aware of the gravity of the  

need for compliance with Section 42. However, apart from a letter seeking  

permission to act on the information which was addressed to a superior officer,  

he did not (it was urged) diarise it elsewhere. Learned counsel urged that PW-

2 had not complied with the mandatory requirements of Section 42, as a result

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of which the trial stood vitiated. He has relied on the following decisions of this  

Court to buttress the submission: Abdul Rashid Ibrahim Mansuri v State of  

Gujarat (“Mansuri”),1 Directorate of Revenue v Mohammed Nisar Holia  

(“Holia”)2 and State of Rajasthan v Jagraj Singh (“Jagraj”).3   

4 Learned counsel for the appellant also submitted that Section 50 has also  

not been complied with. According to him, not only was the bag of the appellant  

searched, but a search of the person of the appellant also resulted in the  

recovery of cash in the amount of Rs. 2,400/- from the left pocket of his trouser.  

Hence, it was urged by the learned counsel that though Section 50 was  

mandatorily required to be complied with, there was a breach of observance.  

Since the appellant was merely given an ‘option’ by PW-2 and PW-4 to be  

searched before a gazetted officer and was not informed that it was his legal  

right to be searched before a gazetted officer or a magistrate, the search was,  

it was urged, vitiated. On this aspect, learned counsel for the appellant has  

relied on the following judgments of this Court: Myla Venkateswarlu v State of  

Andhra Pradesh (“Venkateswarlu”),4 State of Rajasthan v Parmanand  

(“Parmanand”)5 and Namdi Francis Nwazor v Union of India (“Namdi”).6  

On the other hand, the learned counsel appearing on behalf of the respondent-

State has supported the judgment of the High Court and the legality of the  

                                                           1 (2000) 2 SCC 513.  2 (2008) 2 SCC 370.  3 (2016) 11 SCC 687.  4 (2012) 5 SCC 226.  5 (2014) 5 SCC 345.  6 (1998) 8 SCC 534.

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conviction. He argued that since the search was carried out in a public place,  

this case falls solely within the ambit of Section 43 and compliance with Section  

42 was not necessary. Learned counsel for the respondent-State also urged  

that Section 50 is not attracted when the search involves the search of a bag or  

an article belonging to a person.   

5 Section 42 of the Act deals with the power of entry, search, seizure and  

arrest without warrant or authorization. It reads thus:  

“42. Power of entry, search, seizure and arrest without warrant  

or authorisation.—   

(1) Any such officer (being an officer superior in rank to a peon,  

sepoy or constable) of the departments of central excise,  

narcotics, customs, revenue intelligence or any other  

department of the Central Government including para-military  

forces or armed forces as is empowered in this behalf by  

general or special order by the Central Government, or any  

such officer (being an officer superior in rank to a peon, sepoy  

or constable) of the revenue, drugs control, excise, police or  

any other department of a State Government as is empowered  

in this behalf by general or special order of the State  

Government, if he has reason to believe from personal  

knowledge or information given by any person and taken down  

in writing that any narcotic drug, or psychotropic substance, or  

controlled substance in respect of which an offence punishable  

under this Act has been committed or any document or other  

article which may furnish evidence of the commission of such  

offence or any illegally acquired property or any document or  

other article which may furnish evidence of holding any illegally  

acquired property which is liable for seizure or freezing or  

forfeiture under Chapter VA of this Act is kept or concealed in  

any building, conveyance or enclosed place, may between  

sunrise and sunset,—  

(a) enter into and search any such building, conveyance or  

place;   

(b) in case of resistance, break open any door and remove any  

obstacle to such entry;   

(c) seize such drug or substance and all materials used in the  

manufacture thereof and any other article and any animal or

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conveyance which he has reason to believe to be liable to  

confiscation under this Act and any document or other article  

which he has reason to believe may furnish evidence of the  

commission of any offence punishable under this Act or furnish  

evidence of holding any illegally acquired property which is  

liable for seizure or freezing or forfeiture under Chapter VA of  

this Act; and   

(d) detain and search, and, if he thinks proper, arrest any  

person whom he has reason to believe to have committed any  

offence punishable under this Act:   

Provided that in respect of holder of a licence for manufacture  

of manufactured drugs or psychotropic substances or  

controlled substances granted under this Act or any rule or  

order made thereunder, such power shall be exercised by an  

officer not below the rank of sub-inspector:   

Provided further that if such officer has reason to believe that  

a search warrant or authorisation cannot be obtained without  

affording opportunity for the concealment of evidence or facility  

for the escape of an offender, he may enter and search such  

building, conveyance or enclosed place at any time between  

sunset and sunrise after recording the grounds of his belief.   

(2) Where an officer takes down any information in writing  

under sub-section (1) or records grounds for his belief under  

the proviso thereto, he shall within seventy-two hours send a  

copy thereof to his immediate official superior.”  

Section 43 of the Act confers powers on the empowered officer to seize a  

substance and arrest a suspect in a public place. It provides thus:  

“43. Power of seizure and arrest in public place.— Any officer  

of any of the departments mentioned in section 42 may—   

(a) seize in any public place or in transit, any narcotic drug or  

psychotropic substance or controlled substance in respect of  

which he has reason to believe an offence punishable under  

this Act has been committed, and, along with such drug or  

substance, any animal or conveyance or article liable to  

confiscation under this Act, any document or other article which  

he has reason to believe may furnish evidence of the  

commission of an offence punishable under this Act or any  

document or other article which may furnish evidence of  

holding any illegally acquired property which is liable for  

seizure or freezing or forfeiture under Chapter VA of this Act;   

(b) detain and search any person whom he has reason to  

believe to have committed an offence punishable under this

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Act, and if such person has any narcotic drug or psychotropic  

substance or controlled substance in his possession and such  

possession appears to him to be unlawful, arrest him and any  

other person in his company.   

Explanation.— For the purposes of this section, the  

expression “public place” includes any public  

conveyance, hotel, shop, or other place intended for use  

by, or accessible to, the public.” [Emphasis supplied]  

6 We are unable to accept the submission made by the learned counsel for  

the appellant that Section 42 is attracted to the facts of the present case. In  

State of Punjab v Baldev Singh (“Baldev Singh”),7 Chief Justice Dr A S  

Anand speaking for a Constitution Bench of this Court, held:  

“The material difference between the provisions of Section 43  

and Section 42 is that whereas Section 42 requires  

recording of reasons for belief and for taking down of  

information received in writing with regard to the  

commission of an offence before conducting search and  

seizure, Section 43 does not contain any such provision and  

as such while acting under Section 43 of the Act, the  

empowered officer has the power of seizure of the article  

etc. and arrest of a person who is found to be in  

possession of any Narcotic Drug or Psychotropic  

Substances in a public place where such possession  

appears to him to be unlawful.” [Emphasis supplied]  

In Narayanaswamy Ravishankar v Assistant Director, Directorate of  

Revenue Intelligence,8 a three judge Bench of this Court considered whether  

the empowered officer was bound to comply with the mandatory provisions of  

Section 42 before recovering heroin from the suitcase of the appellant at the  

airport and subsequently arresting him. Answering the above question in the  

negative, the Court held:  

                                                           7 (1999) 6 SCC 172.  8 (2002) 8 SCC 7.

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“In the instant case, according to the documents on record  

and the evidence of the witnesses, the search and seizure  

took place at the airport which is a public place. This being so,  

it is the provisions of Section 43 of the NDPS Act which would  

be applicable. Further, as Section 42 of the NDPS Act was not  

applicable in the present case, the seizure having been  

effected in a public place, the question of non-compliance, if  

any, of the provisions of Section 42 of the NDPS Act is wholly  

irrelevant.”  

In Krishna Kanwar (Smt) Alias Thakuraeen v State of Rajasthan,9 a two  

judge Bench of this Court considered whether a police officer who had prior  

information was required to comply with the provisions of Section 42 before  

seizing contraband and arresting the appellant who was travelling on a  

motorcycle on the highway. Answering the above question in the negative, the  

Court held:  

“Section 42 comprises of two components. One relates to the  

basis of information i.e.: (i) from personal knowledge, and (ii)  

information given by person and taken down in writing. The  

second is that the information must relate to commission  

of offence punishable under Chapter IV and/or keeping or  

concealment of document or article in any building,  

conveyance or enclosed place which may furnish  

evidence of commission of such offence. Unless both the  

components exist Section 42 has no application. Sub-

section (2) mandates, as was noted in Baldev Singh case that  

where an officer takes down any information in writing under  

sub-section (1) or records grounds for his belief under the  

proviso thereto, he shall forthwith send a copy thereof to his  

immediate official superior. Therefore, sub-section (2) only  

comes into operation where the officer concerned does the  

enumerated acts, in case any offence under Chapter IV has  

been committed or documents etc. are concealed in any  

building, conveyance or enclosed place. Therefore, the  

commission of the act or concealment of document etc.  

must be in any building, conveyance or enclosed place.”  

[Emphasis supplied]  

                                                           9 (2004) 2 SCC 608; Rajendra v State of M.P ., (2004) 1 SCC 432.

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7 An empowered officer under Section 42(1) is obligated to reduce to  

writing the information received by him, only when an offence punishable under  

the Act has been committed in any building, conveyance or an enclosed place,  

or when a document or an article is concealed in a building, conveyance or an  

enclosed place. Compliance with Section 42, including recording of information  

received by the empowered officer, is not mandatory, when an offence  

punishable under the Act was not committed in a building, conveyance or an  

enclosed place. Section 43 is attracted in situations where the seizure and  

arrest are conducted in a public place, which includes any public conveyance,  

hotel, shop, or other place intended for use by, or accessible to, the public.   

8 The appellant was walking along the Picnic Garden Road. He was  

intercepted and detained immediately by the raiding party in front of Falguni  

Club, which was not a building, conveyance or an enclosed place. The place of  

occurrence was accessible to the public and fell within the ambit of the phrase  

“public place” in the explanation to Section 43. Section 42 had no application.  

9 The cases relied on by the learned counsel for the appellant will also not  

apply in the context of the facts before us. In Mansuri, an auto-rickshaw driver  

was intercepted by police personnel. Four gunny bags of charas were  

recovered from the auto-rickshaw. The police officer who had prior information  

about transportation of some narcotic substance, had neither taken down the  

information before carrying out the seizure and arrest, nor apprised his superior

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officer. He contended that the action taken by him was under Section 43 and  

not Section 42. Rejecting the argument of the State, this Court held that  

compliance with Section 42 was required as the auto-rickshaw was a private  

vehicle and not a public conveyance as contemplated under Section 43.  

Similarly, in Jagraj, contraband was recovered from a jeep which was  

intercepted by police personnel on a public road after receiving prior  

information. The police officer who had received the information, admitted to not  

taking it down in writing, contending that Section 43 would be applicable.  

Rejecting the argument of the State, this Court held that the jeep which was  

intercepted, was not a public conveyance within the meaning of Section 43 and  

compliance with Section 42(1) was therefore mandatory. In Holia, Mandrax  

tablets were recovered from the hotel room of the respondent. The information  

was not reduced to writing by the officer who had first received the information.  

The State claimed that compliance with Section 42 was not required as the hotel  

was a public place. Rejecting the submission of the State, this Court held that  

while a hotel is a public place, a hotel room inside it is not a public place. This  

Court held thus:  

“Section 43, on plain reading of the Act, may not attract the  

rigours of Section 42 thereof. That means that even subjective  

satisfaction on the part of the authority, as is required under  

sub-section (1) of Section 42, need not be complied with, only  

because the place whereat search is to be made is a public  

place. If Section 43 is to be treated as an exception to Section  

42, it is required to be strictly complied with … It is also  

possible to contend that where a search is required to be  

made at a public place which is open to the general public,  

Section 42 would have no application but it may be  

another thing to contend that search is being made on  

prior information and there would be enough time for  

compliance of reducing the information to writing,

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informing the same to the superior officer and obtain his  

permission as also recording the reasons therefore  

coupled with the fact that the place which is required to be  

searched is not open to public although situated in a  

public place as, for example, room of a hotel, whereas  

hotel is a public place, a room occupied by a guest may  

not be. He is entitled to his right of privacy. Nobody, even  

the staff of the hotel, can walk into his room without his  

permission. Subject to the ordinary activities in regard to  

maintenance and/or housekeeping of the room, the guest is  

entitled to maintain his privacy.” [Emphasis supplied]  

There is hence no substance in the first submission.   

10 Section 50 of the Act deals with conditions under which search of persons  

shall be conducted. It states:   

“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, if such person so requires,  

take such person without unnecessary delay to nearest  

Gazetted Officer of any of the departments mentioned in  

section 42 or to the nearest Magistrate.   

(2) If such requisition is made, the officer may detain the person  

until he can bring him before the Gazetted Officer or the  

Magistrate referred to in sub-section (1).   

(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) No female shall be searched by anyone excepting a female.   

(5) When an 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

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section100 of the Code of Criminal Procedure, 1973 (2 of  

1974).   

(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.”  

According to Section 50(1), an empowered officer should necessarily inform the  

suspect about his legal right, if he so requires, to be searched in the presence  

of a gazetted officer or a magistrate. In Vijaysinh Chandubha Jadeja v State  

of Gujarat (“Vijaysinh”),10 a Constitution Bench of this Court interpreted  

Section 50 thus:  

“The mandate of Section 50 is precise and clear, viz. if the  

person intended to be searched expresses to the authorised  

officer his desire to be taken to the nearest gazetted officer or  

the Magistrate, he cannot be searched till the gazetted officer  

or the Magistrate, as the case may be, directs the authorised  

officer to do so … 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 … 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-

                                                           10 (2011) 1 SCC 609.

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section (1) of Section 50 nor it is in consonance with the dictum  

laid down in Baldev Singh's case (supra).”   

The principle which emerges from Vijaysinh is that the concept of “substantial  

compliance” with the requirement of Section 50 is neither in accordance with  

the law laid down in Baldev Singh, nor can it be construed from its language.  

[Reference may also be made to the decision of a two judge Bench of this Court  

in Venkateswarlu]. Therefore, strict compliance with Section 50(1) by the  

empowered officer is mandatory. Section 50, however, applies only in the case  

of a search of a person. In Baldev Singh, the Court held “on its plain reading,  

Section 50 would come into play only in the case of a search of a person as  

distinguished from search of any premises, etc.” In State of Himachal Pradesh  

v Pawan Kumar (“Pawan Kumar”),11 a three judge Bench of this Court held  

that the search of an article which was being carried by a person in his hand, or  

on his shoulder or head, etc., would not attract Section 50. It was held thus:  

“In common parlance it would be said that a person is carrying  

a particular article, specifying the manner in which it was  

carried like hand, shoulder, back or head, etc. Therefore, it is  

not possible to include these articles within the ambit of the  

word “person” occurring in Section 50 of the Act …After the  

decision in Baldev Singh, this Court has consistently held that  

Section 50 would only apply to search of a person and not to  

any bag, article or container, etc. being carried by him.”   

In Parmanand, on a search of the person of the respondent, no substance was  

found. However, subsequently, opium was recovered from the bag of the  

respondent. A two judge Bench of this Court considered whether compliance  

                                                           11 (2005) 4 SCC 350.

14    

with Section 50(1) was required. This Court held that the empowered officer  

was required to comply with the requirements of Section 50(1) as the person of  

the respondent was also searched. [Reference may also be made to the  

decision of a two judge Bench of this Court in Dilip v State of Madhya  

Pradesh]12. It was held thus:  

“Thus, if merely a bag carried by a person is searched without  

there being any search of his person, Section 50 of the NDPS  

Act will have no application. But if the bag carried by him is  

searched and his person is also searched, Section 50 of the  

NDPS Act will have application.”  

Moreover, in the above case, the empowered officer at the time of conducting  

the search informed the respondent that he could be searched before the  

nearest Magistrate or before the nearest gazetted officer or before the  

Superintendent, who was also a part of the raiding party. The Court held that  

the search of the respondent was not in consonance with the requirements of  

Section 50(1) as the empowered officer erred in giving the respondent an option  

of being search before the Superintendent, who was not an independent officer.  

It was held thus:  

“We also notice that PW 10 SI Qureshi informed the  

respondents that they could be searched before the nearest  

Magistrate or before the nearest gazetted officer or before PW  

5 J.S. Negi, the Superintendent, who was a part of the raiding  

party. It is the prosecution case that the respondents informed  

the officers that they would like to be searched before PW 5  

J.S. Negi by PW 10 SI Qureshi. This, in our opinion, is again a  

breach of Section 50(1) of the NDPS Act. The idea behind  

taking an accused to the nearest Magistrate or the nearest  

gazetted officer, if he so requires, is to give him a chance of  

being searched in the presence of an independent officer.  

Therefore, it was improper for PW 10 SI Qureshi to tell the  

                                                           12 (2007) 1 SCC 450.

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respondents that a third alternative was available and that they  

could be searched before PW 5 J.S. Negi, the Superintendent,  

who was part of the raiding party. PW 5 J.S. Negi cannot be  

called an independent officer. We are not expressing any  

opinion on the question whether if the respondents had  

voluntarily expressed that they wanted to be searched before  

PW 5 J.S. Negi, the search would have been vitiated or not.  

But PW 10 SI Qureshi could not have given a third option to  

the respondents when Section 50(1) of the NDPS Act does not  

provide for it and when such option would frustrate the  

provisions of Section 50(1) of the NDPS Act. On this ground  

also, in our opinion, the search conducted by PW 10 SI Qureshi  

is vitiated.”  

The question which arises before us is whether Section 50(1) was required to  

be complied with when charas was recovered only from the bag of the appellant  

and no charas was found on his person. Further, if the first question is answered  

in the affirmative, whether the requirements of Section 50 were strictly complied  

with by PW-2 and PW-4.   

11 As evidenced by Exhibit-3, a first option was given to the appellant. PW-

2 informed him that it was his legal right to be searched either in the presence  

of a magistrate or in the presence of a gazetted officer. The appellant was then  

asked to give his option by indicating whether he wanted to be searched by a  

magistrate or a gazetted officer. The appellant indicated that he wanted the  

search to be carried out in the presence of a gazetted officer. When PW-4  

arrived, he was introduced to the detainee as a gazetted officer. As evidenced  

by Exhibit-4, PW-4 then gave the appellant a second option. He inquired of him  

again, whether he wanted to be searched in the presence of a gazetted officer  

or in the presence of a magistrate. The appellant reiterated his desire to be

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searched in the presence of a gazetted officer. Before the search of the  

appellant commenced, the gazetted officer asked the appellant whether he  

wanted to search PW-2 before his own search was carried out by PW-2. The  

appellant agreed to search PW-2 before the latter carried out his search. On  

conducting the search, only personal belongings of PW-2 were found by the  

appellant. On the search of the appellant in the presence of the gazetted officer,  

a biscuit colour jute bag was recovered from the appellant, and Rs. 2,400/- cash  

in the denomination of 24 notes of Rs. 100/- each was found in the left pocket  

of the appellant’s trouser. When the bag was opened, a black polythene cover  

containing nineteen rectangular broken sheets of a blackish / deep brown colour  

weighing 1.5 kilograms was recovered. The sheets were tested and were found  

to be charas.   

PW-2 conducted a search of the bag of the appellant as well as of the  

appellant’s trousers. Therefore, the search conducted by PW-2 was not only of  

the bag which the appellant was carrying, but also of the appellant’s person.  

Since the search of the person of the appellant was also involved, Section 50  

would be attracted in this case. Accordingly, PW-2 was required to comply with  

the requirements of Section 50(1). As soon as the search of a person takes  

place, the requirement of mandatory compliance with Section 50 is attracted,  

irrespective of whether contraband is recovered from the person of the detainee  

or not. It was, therefore, imperative for PW-2 to inform the appellant of his legal  

right to be searched in the presence of either a gazetted officer or a magistrate.

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From Exhibit-3, it can be discerned that the appellant was informed of his legal  

right to be searched in the presence of a magistrate or a gazetted officer. The  

appellant opted for the latter alternative. Exhibit-4 is a record of the events after  

the arrival of PW-4 on the scene. After the arrival of PW-4, the appellant was  

once again asked by him, whether he wished to be searched in the presence of  

a gazetted officer or a magistrate. This was the second option which was  

presented to him. When he reiterated his desire to be searched before a  

gazetted officer, PW-4 inquired of the appellant whether he wished to search  

PW-2 before his own search was conducted by PW-2. The appellant agreed to  

search PW-2. Only the personal belongings of PW-2 were found by the  

appellant. It was only after this that a search of the appellant was conducted  

and charas recovered. Before the appellant’s search was conducted, both PW-

2 and PW-4 on different occasions apprised the appellant of his legal right to be  

searched either in the presence of a gazetted officer or a magistrate. The  

options given by both PW-2 and PW-4 were unambiguous. Merely because the  

appellant was given an option of searching PW-2 before the latter conducted  

his search, would not vitiate the search. In Parmanand, in addition to the option  

of being searched by the gazetted officer or the magistrate, the detainee was  

given a ‘third’ alternative by the empowered officer which was to be searched  

by an officer who was a part of the raiding team. This was found to be contrary  

to the intent of Section 50(1). The option given to the appellant of searching  

PW-2 in the case at hand, before the latter searched the appellant, did not vitiate  

the process in which a search of the appellant was conducted. The search of

18    

the appellant was as a matter of fact conducted in the presence of PW-4, a  

gazetted officer, in consonance with the voluntary communication made by the  

appellant to both PW-2 and PW-4. There was strict compliance with the  

requirements of Section 50(1) as stipulated by this Court in Vijaysinh.   

12 As we have already held that Section 50 was attracted in the present  

case, we do not need to decide on the applicability of Namdi to the facts of the  

present case. We have held that Section 50 was complied with. Having regard  

to the above position, we do not find any merit in the appeal.   

13 The Criminal Appeal shall accordingly stand dismissed.  

...………............................................CJI                       [DIPAK MISRA]         

                             ...…….…...............................................J  

           [Dr Dhananjaya Y Chandrachud]  

 .….……….............................................J  

           [INDIRA BANERJEE]        New Delhi;  September 05, 2018.