LexASHOK KUMAR SHARMA versus STATE OF RAJASTHAN
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A B c [2013) 1 S.C.R. 236 ASHOK KUMAR SHARMA v. STATE OF RAJASTHAN (Criminal Appeal No. 817 of 2008) JANUARY 9, 2013 [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.] NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985: s. 50 - Search of person of suspect I accused - Procedure - Nature of- Conviction of accused ulss.8 and 21 - Held: It is mandatory on the part of the authorized officer to make the accused aware of his right to be searched before a Gazetted 0 Officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance - In the instant case. accused had been only informed that he could be searched before a Magistrate or a Gazetted Officer, if he so wished - Thus, there being non-compliance of the mandatory E provision, conviction and sentence awarded by courts below, set aside - Maxim "iqnorantia juris non excusat". The appellant was convicted and sentenced to 10 years RI and a fine of Rs. 1 lakh u/ss. 8 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, F as he was stated to have been found in possession of two packets of smack of 344 gm. each. His appeal was dismissed by the High Court. In the instant appeal it was contended for the G accused-appellant that his conviction was vitiated for non-compliance of the procedure laid down u/s. 50 of the NDPS Act, as he was not informed by the empowered officer of his right to be searched before a Magistrate or a Gazetted Officer. H 236 ASHOK KUMAR SHARMA v. STATE OF RAJASTHAN 237 Allowing the appeal, the Court HELD: 1.1. This Court in Vijaysingh Chandubha Jadeja's case has held that u/s. 50 of the NDPS Act, it is mandatory on the part of the authorized officer to make A the accused/suspect aware of the existence of his right 8 to be searched before a Gazetted Officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. Thus, an obligation is cast on the officer concerned u/s. 50 of the NDPS Act to apprise the person of his right to be searched before a Gazetted Officer or a Magistrate. Therefore, the general maxim C "ignorantia juris non excusar has no application. [Para 7 and 9] [240-D-E; 241-E-H; 242-A] Vijaysingh Chandubha Jadeja v. State of Gujarat 2010 (13) SCR 255 = (2011) 1 sec 609 - relied on. D 1.2. In the instant case, the statement of PW1 would clearly indicate that he had only informed the accused that he could be searched before a Magistrate or a Gazetted Officer if he so wished. The fact that the accused person has a right u/s. 50 of the NDPS Act to E be searched before a Gazetted Officer or a Magistrate was not made known to him. This Court, therefore, is of the view that non-compliance of the mandatory procedure prescribed u/s. 50 has vitiated the entire proceedings initiated against the accused-appellant. The Special Court F as well as the High Court, have committed an error in not properly appreciating the scope of s. 50 of the NDPS Act. Consequently, the conviction and sentence imposed by the courts below is set aside. [Para 8, 10] [241-B-C; 242- B-C] G Case Law Reference: 2010 (13) SCR 255 relied on Para 5 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal H No. 817 of 2008. 238 SUPREME COURT REPORTS [2013] 1 S.C.R. A From the Judgment & Order dated 09.02.2007 of the High B Court of Rajasthan, Jaipur Bench in SB Crl. A.No. 1157 of 2003. C.K. Sucharita for the Appellant. Amit Lubhaya, Pragati Neekhra for the Respondent. The Judgment of the Court was delivered by K.S. RADHAKRISHNAN, J. 1. The short question that C 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 0 whether such a procedure is mandatory under the provisions of the NDPS Act. 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 E 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 F
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