LexPRABHA SHANKAR DUBEY versus STATE OF MADHYA PRADESH
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A PRABHA SHANKAR DUBEY v. STATE OF MADHYA PRADESH DECEMBER 2, 2003 B [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.] Narcotics Drugs and Psychotropic Substances Act, 1985; Section I 8: Suspects carrying opium intercepted by Officer-Notice for search by C Magistrate/Gazetted Officer-Opted to be searched by Officer intercepting them-Seizure of opium ji·om their custody-Trial Court convicted and sentenced them for committing offence holding that statutory requirements pertaining to search of s.uspects fully complied with-Upheld by the High Court-On appeal, Held : Since no specific form prescribed under the D provisions of the Act except conveying to suspects about existence of their right to search by named officers, the question as to compliance thereto has to be decided on facts of each case and not by any strait jacket formula-It is only ·a procedural requirement to protect rights of an accused-No material placed before the Courts below to substantiate the plea of non-compliance of requirements of provisions of th~ concerned E authority-Hence, no infirmity in- the impugned judgment to warrant interference. According to the prosecution, on receipt of information, appel- lants possessing opium were intercepted by the Officer of Narcotics F Department. They were served a notice to inform them as to whether they would desire to be taken to a Magistrate or a Gazetted Officer for search. They did not opt to be searched by them. Hence they were searched by the Officer of the Narcotics Department. 200 gm. of opium was found which was seized and sent to the Forensic Science Labora- tory and matter was investigated. Trial Court found both accused G guilty of the offence punishable under Section 18 of the Narcotics Drugs and Psychotropic Substances Act and convicted and sentenced them accordingly. The order was upheld by the High Court. Hence the present appeals. H It was contended for the accused-appellants that merely asking . 444 PRABHA SHANKAR DUBEYv. STATE OF M.P. 445 the accused as to whether they would like to b~, searched by the A Magistrate/Gazetted Officer, is not a sufficient compliance of Section 50 of the Act. On behalf of the respondent-State, it was submitted that no specific manner has been prescribed under Section 50 of the Act to B intimate accused for search by the Magistrate or a Gazatted officer, that the purpose of such information is to ensure transparency and to rule out any allegation of false implication; and that since accused did not opt to be searched by the named officer, search could be conducted by the officers to the exclusion of named officers. c Dismissing the appeals, the Court · HELD : 1.1. There is no specific form prescribed or intended for conveying the information required to be given under Section 50 orthe Narcotics Drugs and Psychotropic Substances Act. What is necessary D is existence of his right to be searched in the presence of one of the officers named in the Section itself. Since no specific mode or manner is prescribed or intended, the Court has to see the substance and not the form of intimation. Whether the requirements of Section 50 have been met is a question which is to be decided on the facts of each case and there cannot be any sweeping generalization and/or strait-jacket E formula. [451-A-C] State of Punjab v. Ba!dev Singh, [1999) 6 SCC, 172, followed. 1.2. Section 50 of the Act does not involve any self-incrimination. F It is only a procedure required to protect the right of an accused (suspect) being made aware of the existence of his right to be searched if so required by him before any of the specified officers. The object seems to be to ensure that at a later stage the accused (suspect) does not take a plea that the articles were planted on him or that those were not recovered from him. To put it differently, fair play and transpar- G ency in the process of search has been given the primacy. If a thing is required to be done in a particular way it should be done in that way, but in the instant case, position is different in view of the conclusions that the requirements of Section 50 of the Act were sufficiently complied with. [451-C-E] H 446 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R. A Raghbir Singh v. State of Haryana, (1996) 2 SCC 201; Nazir Ahmad v. King-Emperor, AIR (1936) P.C. 253; State of Uttar Pradesh v. Singhara Singh & Ors., (1964) 4 SCR 48S and Joseph Fernandez v. State of Goa, (200
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