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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.817 OF 2008

Ashok Kumar Sharma …. Appellant

Versus

State of Rajasthan …. Respondent

J U D G M E N T

K.S. Radhakrishnan, J.

1. The short question that has come up for consideration in this  

appeal is whether the empowered officer, acting under Section 50  

of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for  

short ‘the NDPS Act’) is legally obliged to apprise the accused of  

his right to be searched before a Gazetted Officer or a Magistrate  

and whether such a procedure is mandatory under the provisions  

of the NDPS Act.

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2. PW1,  Additional  Superintendent  of  Police  (Crimes),  Jaipur  

City, Jaipur got secret  information  that  on 25.2.2001 one Ashok  

Kumar,  the appellant herein would be selling smack to a person  

near Nandipur under Bridge.  After completing the formalities PW1  

along  with  two  independent  witnesses  reached  near  Nandpuri  

under Bridge.  At about 4.55 P.M. a person came on a scooter,  

who was stopped by the police force and was questioned.  Exhibit  

P-3, notice was given by PW1 under Section 50 of the NDPS Act to  

the appellant to get himself searched either before a Magistrate  

or a Gazetted officer.   The appellant gave his consent in writing  

on Ex.P-3 itself  stating  that  he  has  full  confidence in  him and  

agreed for search.  Upon search two packets had been recovered  

from the right and left pockets of the pant of the appellant.  The  

contra-banned   was weighed by PW7, goldsmith and the total  

weight  of  the  packets  was  344  gms.    From each packet  two  

samples of 10 gms. were taken and sealed and remaining packets  

were sealed separately.  The appellant was then arrested and the  

scooter was seized.

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3. PW1  gave  a  written  report  to  the  Station  House  Officer,  

Malviya Nagar Police Station, Jaipur to register FIR No.112/2001  

under Section 8 and 21 of the NDPS Act.  Ex-P-19, report of the  

Public Analyst of the Rajasthan State Forensic Laboratory, Jaipur  

showed  that  the  samples  contained  the  presence  of  

diacetylmorphine (Heroin).   On completion of the investigation,  

challan was filed against  the accused.   Learned Special  Judge,  

NDPS framed the charge under Sections 8 and 21 of the NDPS  

Act.   Before  the  Special  Judge,  prosecution  examined  14  

witnesses and produced Ex. P1 to P19.  The accused-appellant in  

his  statement  under  Section  313  of  the  Code  of  Criminal  

Procedure stated that false case had been foisted against him.

4. The Sessions Court after having found guilty, convicted the  

appellant and sentenced him to undergo rigorous imprisonment  

for ten years and to pay a fine of Rs.1 lakh and, in default,  to  

further under go simple imprisonment for one year.  The appellant  

preferred Criminal Appeal No.1157 of 2003 before the High Court

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under Section 374 of the Code of Criminal Procedure.  The appeal  

was,  however,  rejected by the High Court  on 9.2.2007 against  

which this appeal has been preferred by way of special leave.

5. Ms. C.K. Sucharita, learned amicus curiae appearing for the  

appellant-accused submitted that the High Court has committed a  

grave error in not appreciating the fact that the conviction was  

vitiated  by  the  non-compliance  of  the  procedure  laid  down  in  

Section  50  of  the  NDPS  Act.   Learned  counsel  took  us  to  the  

evidence of PW1 and submitted that PW1 had not disclosed the  

fact  that  the  accused  had  a  right  to  be  searched  before  a  

Gazetted Officer or a Magistrate, if so required by him.  According  

to the learned counsel non-compliance of that procedure vitiated  

the entire proceedings initiated against the appellant.  In support  

of her contention reliance was placed on a Judgment of this court  

in  Vijaysingh Chandubha Jadeja v.  State of Gujart (2011) 1  

SCC 609.   

6. Mr. Amit Lubhaya, learned counsel appearing for the State of  

Rajasthan, on the other hand, contended that the Sessions Court

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has  rightly  convicted  the  appellant  and  there  has  been  a  

substantial compliance of the procedure laid down under Section  

50 of the -

NDPS Act.  Learned counsel further submitted that the High Court  

in a well considered order has affirmed the conviction as well as  

the sentence imposed by the Special Judge.

7. We  are  in  this  case  concerned  only  with  the  question  

whether PW1, the officer who had conducted the search on the  

person  of  the  appellant  had  followed  the  procedure  laid  down  

under Section 50 of the NDPS Act.   On this question, there were  

conflicts  of  views  by  different  Benches  of  this  Court  and  the  

matter  was  referred  to  a  five  Judge  Bench.   This  Court  in  

Vijaysingh Chandubha Jadeja (supra) answered the question,  

stating that it is imperative on the part of the officer to apprise  

the person intended to be searched of his right under Section 50  

of the NDPS Act, to be searched before a Gazetted Officer or a  

Magistrate.  This Court also held that it is mandatory on the part  

of  the  authorized  officer  to  make  the  accused  aware  of  the

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existence of his right to be searched before a Gazetted Officer or  

a Magistrate, if so required by him and this mandatory provision  

requires strict compliance.  The suspect may or may not choose  

to exercise the right provided to him under the said provision, but  

so far as the officer concerned, an obligation is cast on him under  

Section 50 of the NDPS Act to apprise the person of his right to be  

searched before a Gazetted Officer or a Magistrate.  The question,  

as to whether this procedure has been complied with or not, in  

this case the deposition of PW1 assumes importance, which reads  

as follows:

“He  was  apprised  while  telling  the  reason  of  being  searched  that  he  could  be  searched  before  any  Magistrate or  any Gazetted Officer  if  he wished.   He  gave his consent in written and said that I have faith on  you, you can search me.  Fard regarding apprising and  consent is Ex.P-3 on which I put my signature from A to  B and the accused put his signature from C to D. E to F  is the endorsement of the consent of the accused and G  to  H  is  signature,  which  has  been  written  by  the  accused.”

8. The above statement of PW1 would clearly indicate that he  

had only informed the accused that he could be searched before

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any Magistrate or a Gazetted Officer if he so wished.  The fact  

that the accused person has a right under Section 50 of the NDPS  

Act to be searched before a Gazetted Officer or a Magistrate was  

not made known to him.  We are of the view that there is  an  

obligation  on  the  part  of  the  empowered officer  to  inform the  

accused or  the suspect  of  the existence of  such a right  to  be  

searched before a Gazetted Officer or a Magistrate, if so required  

by him.  Only if the suspect does not choose to exercise the right  

in spite of apprising him of his right, the empowered officer could  

conduct the search on the body of the person.   

9. We may, in this connection, also examine the general maxim  

“ignorantia juris non excusat” and whether in such a situation  

the accused could take a defence that he was unaware of the  

procedure laid down in Section 50 of the NDPS Act.  Ignorance  

does  not  normally  afford  any  defence  under  the  criminal  law,  

since  a  person  is  presumed  to  know  the  law.   Indisputedly  

ignorance  of  law  often  in  reality  exists,  though  as  a  general  

proposition, it is true, that knowledge of law must be imputed to  

every person.  But it must be too much to impute knowledge in

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certain situations, for example, we cannot expect a rustic villager,  

totally  illiterate,  a poor  man on the street,  to be aware of the  

various law laid down in this country i.e. leave aside the NDPS  

Act.   We  notice  this  fact  is  also  within  the  knowledge  of  the  

legislature, possibly for that reason the legislature in its wisdom  

imposed  an  obligation  on  the  authorized  officer  acting  under  

Section 50 of  the NDPS Act  to  inform the suspect  of  his  right  

under Section 50 to be searched in the presence of a Gazetted  

Officer  or  a  Magistrate  warranting  strict  compliance  of  that  

procedure.

10. We are of the view that non-compliance of this mandatory  

procedure has vitiated the entire proceedings initiated against the  

accused-appellant.  We are of the view that the Special Court as  

well  as the High Court has committed an error in not properly  

appreciating the scope of Section 50 of the NDPS Act.  The appeal  

is, therefore, allowed.   Consequently the conviction and sentence  

imposed by the Sessions Court and affirmed by the High Court are  

set aside.  The accused-appellant, who is in jail, to be released  

forthwith,  if not required in connection with any other case.

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…………………………..J.            (K.S. Radhakrishnan)

   ….....……………………J.     (Dipak Misra)

New Delhi, January 9, 2013