AHMED versus STATE OF GUJARAT

Citation: [2000] SUPP. 2 S.C.R. 642 · Decided: 25-08-2000 · Supreme Court of India · Bench: G.B. PATTANAIK · Disposal: Appeal(s) allowed

Judgment (excerpt)

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AHMED 
v. 
STATE OF GUJARAT 
AUGUST 25, 2000 
[G.B. PATTANAIK AND U.C. BANERJEE, JJ.] 
Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 20-
8(2), 41, 42, 50-Search conducted by an empowered officer-Recovery of 
charas from the person of the accused-In.formation to the accused under 
Section 50 of his right of being taken to the nearest gazetted o.{ficer or nearest 
Magistrate for making the search-Requirement of-Held, mandatory-
Accused himse(f wanted to be searched be.fore a gazetted officer or a 
Magistrate and it was denied-Consequence of-Held, it renders the recove1y 
of illicit article suspect and vitiates the conviction and sentence of the 
accused-The right cannot be taken away merely because the officer going to 
search happens to be a gazetted o.fficer-No d(fferentiation could be made 
whether the search was being made by the empowered officer who was a 
gazetted officer or an officer duly mtthorised by the empowered officer. 
On receipt of certain information that the accused was dealing with 
narcotics, the empowered officer called the panch witnesses and raided the 
house of the accused. The person of the accused was searched and from his 
pant pocket, 9 grams of charas was recovered. The factum of recovery of 
charas from the pant of the accused was established through the panch 
witness PW -1 and the seizure list. However, in his cross-examination, 
PW-1 stated that the accused himself had requested for being taken to the 
Magistrate for being searched but the Police had declared that it was not 
necessary. 
The Additional Sessions Judge, on consideration of the prosecution 
evidence, convicted the accused of the offence under Section 20-8(2) of the 
Narcotic Drugs and Psychotropic Substances Act, 1985. He was sentenced 
to undergo rigorous imprisonment for 10 years and a tine of rupees one 
lakh. In appeal, the High Court affirmed the conviction and sentence. 
Hence the present appeal. 
On behalf of the accused, it was contended that the mandatory 
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requirements of Section 50 of the Narcotic Drugs and Psychotropic Sub-
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AHMED v. STATE OF GUJARAT 
643 
stances Act had not been complied with inasmuch as notwithstanding the 
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fact that the accused himself requested for being taken to the Magistrate 
for the purpose of search, the Police did not accede to the same and, 
therefore, the conviction was null and void; that to ensure fairness in the 
search itself and for compliance of Section 50 of the Act, no differentiation 
could be made whether the search was being made by the empowered 
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officer or the authorised officer, who may be a subordinate officer whom 
the empowered officer authorises. 
On behalf of the State, it was contended that the provisions of Sec· 
tion 50 were attracted only when a search was made by an authorised 
officer and not when made by an empowered officer inasmuch as the 
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empowered officer was a gazetted officer. 
Allowing the appeal, the Court 
HELD : 1.1. The accused himself having wanted to be searched 
before a gazetted officer or a Magistrate and the State having been denied, 
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there cannot be any doubt that failure on the part of the prosecution in 
complying with the provisions of Section 50, renders the recovery of illicit 
article suspect and vitiates the conviction and sentence of the accused, 
since the conviction in the case in hand is based solely on the alleged 
possession of charas, which was recovered from his person, during a search 
conducted in violation of the provisions of Section 50 of the Act. (652-D-F] 
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1.2. When an empowered officer or a duly authorised officer, acting 
on prior information is abot1t to search a person, it is imperative for him to 
inform the person concerned 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. For the purpose of complying wit~ the provisions of 
Section 50, no differentiation can be made on a plain reading of the 
language used in Section 50, depending upon the officer who is going to 
search the person concerned. Since the search is about to be effected on the 
basis of any prior information or personal knowledge, which the person 
going to search has the reasons to believe that an offence under the Act is 
being committed, then for the sanctity of the search itself, the. person to be 
searched has been afforded the minimum right to be searched before 
another gazetted officer 

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