STATE OF RAJASTHAN versus BHANWAR LAL & ANR.

Citation: [2009] 5 S.C.R. 1 · Decided: 03-03-2009 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Partly allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2009) 5 S.C.R. 1 
STATE OF RAJASTHAN 
11. 
BHANWAR LAL & ANR. 
(Criminal Appeal No.145 of 2003) 
MARCH 3, 2009 
·[DR. ARIJIT PASAYAT AND ASOK KUMAR 
GANG UL Y, JJ.] 
Narcotics and Psychotropic Substances Act, 1985: 
s.50 - Right of accused to exercise option under s.50 
of being searched by gazetted officer or magistrate - Held: 
The use of word 'nearest' in s.50 is relevant - Search has to 
A 
8 
c 
be conducted at earliest and, once person to be searched 
opts to be searched in presence of such senior officer, it is 0 
for police officer who is to conduct the search, to conduct it in 
the presence of conveniently available officer - On facts, 
acquittal reForded by High Court for non-compliance of s.50 
not justified. 
s.27 - Seizure of opium - Quantity seized was less than E 
25 grams - Held: s.27 has application in terms of the 
Noti~ation No.G.0.327E dated 161711996 of the Central 
Government issued in exercise of power under Section 27 of 
the Act-' Since accused is in custody for more than two years 
and 7 months, sentence restricted to the period already F 
undergone. 
The respondents were convicted under Section 8 
read with Section 18 of Narcotics and Psychotropic 
Substances Act, 1985. High Court found that there was G 
non compliance with the, requirements of Section 50 of 
the Act and directed acquittal. 
In appeal to this Court, State-appellant contended 
that the High Court went on discarding the evidence of 
1 
H 
2· 
SUPREME COURT REPORTS 
(2009] 5 S.C.R. 
A the Dy. Superintendent of Police PW.16 on the ground of 
alleged variation in testimony vis-a-vis. PW.12. It was 
pointed out that PW.16 stated that he asked the accused 
persons as to whether they wanted to be searched by 
Gazetted Officer, or Magistrate in the sense that he 
s himself was a Gazetted Officer. PW.12 stated that the 
accused persons were asked whether they wanted to be 
searched in the presence of PW.16 himself or Magistrate. 
This according to the appellant-State was not a proper 
c 
way of reading the evidence. 
· 
Respondent contended that the quantity seized was 
below 25 grams. He referred to a Notification No.G.0.327E 
dated 1617/1996 of the Central Government issued in 
exercise of power under Section 27 of the Act which 
. provided that accused found in possession upto 25 
· D grams of opium can be awarded such sentences as 
meant for "small quantities". According to him, the 
quantity of 20 grams was meant for his personal use. 
E 
Partly allowing the appeal, the Court 
HELD: 1.1: A reading of the evidences of PW 12 ,ind 
16 showed no material contradiction regaJding 
information given to the accused to exercise th~ option 
to be examined in the presence of Gazetted Officer or a 
F Magistrate. The High Court was not justified in drawing 
that inference. The version of PW.16 was in line with what 
was stated in Ext.P.8. [Para 5) [5-C-D] 
G 
State of Rajasthan v. Ram Chandra 2005 (5) SCC 151, 
relied on. · 
1.2. The option under Section 50 of the Narcotics and 
Psychotropic Substances Act, as it plainly reads, is only 
of being searched in the presence of such senior officer. 
There is no further option of being searched in the 
H presence of a Magistrate. The use of the word 'nearest' 
' j
•
1
j 
' 
. J
,... 
ii 
STATE OF RAJASTHAN v. BHANWAR LAL & ANR. 
3 
~·-
in Section 50 is relevant. The search has to be conducted 
A 
at the earliest and, once the person to be searched opts 
to be searched in the presence of such senior officer, it 
is for the police officer who is to conduct the search to 
conduct it in the presence of whoever is the most 
conveniently available, gazetted officer or Magistrate. 
B 
Therefore, the acquittal as recorded was not justified. 
However, as rightly contended by the respondent that the 
quantity seized was less than 25 grams. That being so, 
Section 27 of the Act has application in terms of the 
Notification referred above. It is stated that he is in c 
custody for more than two years and 7 months. That 
being so it will be appropriate to restrict the sentenced 
to the period already undergone. [Paras 6 and 7) [6-H; 7-
A] 
Case Law Reference: 
D 
J 
2005 (5)SCC 151 
relied on 
Para 7 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal 
No.145 of 2003. 
E 
From the Judgment and Order dated 07.02.2002 of the 
High Court of Judicature for Rajasthan at Jodhpur in S.B. 
Criminal Appeal No. 445/1999. 
Dr. Manish Singnvi, AAG(Raj), Milind Kumar, Sandeep 
F 
Bajaj and Aruneshwar Gupta (NP) for the Appe

Excerpt shown. Read the full judgment & AI analysis in Lexace.