MAN BAHADUR versus STATE OF H.P.

Citation: [2008] 13 S.C.R. 955 · Decided: 23-09-2008 · Supreme Court of India · Bench: S.B. SINHA, CYRIAC JOSEPH · Disposal: Appeal(s) allowed

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Judgment (excerpt)

[2008] 13 S.C.R. 955 
MAN BAHADUR 
v. 
STATE OF H.P. 
(Criminal Appeal No. 1513 of 2008) 
SEPTEMBR 23, 2008 
[S.8. SINHA AND CYRIAC JOSEPH, JJ] 
Narcotic Drugs and Psychotropic Substances Act, 1985: 
A 
B 
s. 50 - Search of person - Right to be searched before a 
Gazetted Officer or a Magistrate - HELD: In the instant case, C 
search memo or any other document do not show that the 
suspect was made aware of his right to be searched before a 
Gazetted Officer or a Magistrate -
I. 0. had merely given an 
option to the suspect to be searched either by himself or in· 
presence of a Magistrate or a Gazetted Officer - No evidence D 
has been adduced to show that suspect was communicated 
of his right either to be searched in presence of a Magistrate 
or a Gazetted Officer on the one hand and by an empowered 
officer on the other-There has been even no substantial com-
pliance of s.50 - Conviction and sentence set aside. 
E 
State of Punjab vs. Baldev Singh 1999(3) SCR 977= 
(1999) 6 SCC 172; Vjaysinh Chandubha Jadeja vs. State of 
Gujarat 2007 (1) SCC 433; and Noor Aga vs. State of Punjab 
and Anr. [2008] 10 SCR 379=2008 (9) SCALE 681 - relied 
on. 
Miranda vs. Arizona 384 US 436 - referred to. 
Case Law Reference 
1999(3) SCR 977 
relied on 
para 2 
·354 us 436 
referred to 
para 2 
2001 (1 l sec 433 
relied on 
para 3 
[2008] 10 SCR 379 
relied on 
para 8 
955 
F 
G 
H 
956 
SUPREME COURT REPORTS 
[2008] 13 S.C.R. 
..\ 
A 
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal 
No. 1513 of2008 
From the final Judgment and Order dated 20.12.2005 of 
the High Court of Himachal Pradesh at Shimla in Crl. A. No. 
337 of 2003 
B 
Radha Shyam Jena for the Appellant. 
Naresh K. Sharma for the Respondent. 
The following Order of the Court was delivered 
c 
Delay condoned. 
Leave granted. 
1. One of the questions which arises for consideration in 
D this appeal is as to whether Shri Lal Chand No. 8 1.0. 
P.P.Pandoh(P.W.10) was bound to make the accused-appel-
lant aware that he had also a right to be searched before a 
Magistrate or a gazetted Officer. 
2. In State of Punjab Vs. Baldev Singh -(1999) 6 SCC 172, 
E a Constitution Bench of this Court has clearly held that the ac-
cused has a right to be made aware thereof. Having regard to 
the Miranda clause as enunciated by the Supreme Court of the 
United States of America in Miranda Vs. Arizona-384 US 436, 
the Constitution Bench held that, although.such communication 
F itself may not necessarily be made in writing but as far as pos-
,,. ... 
sible suc:h communication should be made in the presence of 
some independent and respectable persons witnessing the 
arrest and search. 
It was opined: 
G 
"57 On the basis of the reasoning and discussion above, 
the following conclusions arise: 
(1) 
That when an empowered officer or a duly authorised 
officer acting on prior information is about to search 
H 
a person, it is imperative for him to inform the person 
"' 
MAN BAHADUR v. STATE OF H.P. 
957 
) 
concerned of his right under sub-section (1) of A 
Section 50 of being taken to the nearest gazetted 
officer or the nearest Magistrate for making the 
search. However, such information may not 
necessarily be in writing. 
-i 
(2) 
That failure to inform the person concerned about 8 
the existence of his right to be searched before a 
gazetted officer or Magistrate would cause prejudice 
to an accused." 
3. A three-Judge Bench of this Court in Vijaysinh c 
Chandubha Jadeja Vs. State of Gujarat - (2007) 1 SCC 433 
noticed the aforementioned dicta laid by the Constitution Bench 
in Baldev Singh(Supra) and in no uncertain terms opined that 
the accused must be told of his right to be searched before a 
gazetted officer or a Magistrate. 
D 
-f 
4. The Bench, however, was of the opinion that some more 
clarification is necessary as to whether such communication of 
the right of the accused could be taken in evidence by way of 
oral evidence of the officer concerned. 
5. In this case it is accepted at the Bar that the search 
E 
memo or any other document do not show that the appellant 
was made aware of his right to be searched before a gazetted 
officer or a Magistrate. 
6. From the deposition of P.W.10-1.0.P.P. Pandoh, it ap-
F 
pears that he had merely given an option to the appellant to be 
-searched either by himself or in presence of a Magistrate or a 
gazetted Officer. 
7. No evidence has been adduced to show that the appel-
lant was communicated of his right either to be searched in pres-

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