SAIYAD MOHD. SAIYAD UMAR SAIYED AND ORS. versus THE STATE OF GUJARAT

Citation: [1995] 3 S.C.R. 117 · Decided: 03-04-1995 · Supreme Court of India · Bench: A.M. AHMADI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

SAIYAD MOHD. SAIYAD UMAR SAIYED AND ORS. 
A 
v. 
THE STATE OF GUJARAT 
APRIL 3, 1995 
(A.M. AHMADI, CJ., S.P. BHARUCHA AND G.T. NANAVATI, JJ.] 
B 
Narcotic Drugs and Psychotropic Substances Act, 198~Section 
5()-{nfonnation to the accused of his right to be searched before a Gazetted 
- --\ 
Offic~ or a Magistrate-Whether mandato~e/d yes-Cogent evidence 
must be produced to prove it-Issue of instructions to Investigating officers to c 
comply with the statutory requirement-Need for. 
Indian Evidence Act 1872-Sec. 114 illustration (e}-Applicability of-
No evidence to show that accused was infonned about his right or protection 
under Section 50 of the Narcotic Drugs and Psychotropic Substances Act-It D 
cannot be presumed that official act of infonning the accused has been 
reFJ.llarly peifonned. 
Under Section 50 of the Narcotic Drugs and Psychotropic Substan-
ces (NDPS) Act, 1985 the person who Is to be searched, bas a right to 
be searched before a Gazetted Officer or a Magistrate, if be so desires. E 
In the present case, during the trial, none of the police personnel who 
bad apprehended the appellants deposed that they had informed the 
appellants of their right to be searched before a Gazetted Officer or a 
Magistrate. 
The trial court convicted and sentenced the appellants for offences 
F 
-----~ 
under Section 20 of the NDPS Act aud Sections 65 and 66 of the 
Bombay Prohibition Act, 1949. On appeal the High Court upheld the 
conviction. 
Before the High Court, it was contended that the provisions of G 
Section SO of NDPS Act are mandatory and as there was no evidence to 
show that the police personnel who had searched the appellants had 
~· 
informed the appellants of their right under Section 50 the appellants 
were entitled to an· acquittal. The High Court rejected the argument on 
the grounds that (a) in cases under the NDPS Act, it is the duty of the H 
117 
118 
SUPREME COURT REPORTS 
(1995] 3 S.C.R. 
A Court to raise a presumption under Section 114, illustration (e) or the 
Evidence Act that the officer had followed the procedure mandated by 
Section 50 even if he does not depose so; and (b) the argument was a 
point of fact and could not be raised for the first time before the 
appellate court. 
B 
Hence, the present appeal. 
Allowing the appeal and acquitting the appellants, this Court 
HELD: 1. Having regard to the grave consequences that may entail 
C the possession or illicit articles under the NDPS Act, namely, the shifting or 
the onus to the accused and the severe punishment to which he becomes 
liable, the legislature bas enacted the safeguard contained in Section 50 or 
the NDPS Act. To obviate any doubt as to the possession by the accused or 
illicit articles under the NDPS Act, the accused is authorised to require the 
search for such possession to be conducted in the presence of a Gazetted 
D Officer or a Magistrate. The provisions in this behalf are IJU!ndatory and 
the language thereof obliges the officer concerned to inform the person to be 
searched or his right to demand that the search be conducted in the 
presence of a Gazetted Officer or a Magistrate. [U2·H, 123-A, BJ 
E 
State of Punjab v. Ba/bir Singh, (1994] 3 SCC 299, relied on. 
2. Having regard to the object for which the provisions of Section 50 
have been introduced into the NDPS Act and when the language thereof 
obliges the officer concerned to inform the person to be searched of his 
right to be searched in the presence or a Gazetted Officer or a Magistrate, 
F there is no room for drawing a presumption under Section 114, illustra· 
lion (e) of the Indian Evidence Act, 1872. [123-C] 
3. When the Officer concerned has not deposed that he bad followed 
the procedure mandated by Section 50 of the NDPS Act, the court is duty 
bound to conclude that the accused had not bad the benefit of the protec· 
G lion that Section 50 affords; that, therefore, his possession or articles 
which are illicit under the NDPS Act is not established; that the pre-con· 
dition for bis having to satisfactorily account for such possession has not 
been met; and to acquit the accused. Instructions in this behalf need to be 
issued so that investigation officers take care to comply with the statutory 
H requirement and drug peddlers do not go scot free due to non-compliance 
·-
-·~ 
J. 
SAIYAD MOHD. v. STATE (BHARUCHA, J.] 
thereof. (123-G, H, 124-A, F] 
119 
4. The protection that Section 50 of the NDPS Act gives to those 
accused of being in posses

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