T.T. HANEEFA versus STATE OF KERALA

Citation: [2004] SUPP. 1 S.C.R. 604 · Decided: 21-04-2004 · Supreme Court of India · Bench: K.G. BALAKRISHNAN, B.N. SRIKRISHNA · Disposal: Dismissed

Judgment (excerpt)

A 
T.T. HANEEFA 
v. 
STA TE OF KERALA 
APRIL 21, 2004 
B 
[K.G. BALAKRISHNAN AND B.N. SRIKRISHNA; JJ.] 
Narcotic Drugs and P8ychotropic Substances Act,· 1985: 
Ss: 21 ·and 50-Accused<not··exercising. right· u/s 50- to be·searched 
C before Magistrate-Plea •before court for violation of s.50-:-Police suspecting 
the accused of selling brown sugar-On his .ipersonal search 3. 70' gm. of· 
brown sugar recovered from h~s persort'-Prosecution-Accused found guilty 
and convictecJ..;-His plea of violation of s.50 rejected-Held, accused was in 
possession.of narcotic drug and evidence proved that offence was committed-
D Accused was given·option to be searched in presence of Magistrate_butehe 
did not exercise the right-There·was no procedura/lillegality-lt cannot·be 
said that· there is any violation ofs.50. 
E 
F 
G 
Beckodan Abdul Rahiman ·v;- State of Kera/a, (2002) 4 SCC 229, 
distinguished. 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1336 of 
2002. 
From the Judgment and Order dated·7.6.2001 ofthe Kerala High.Court 
in Crl: A;' No: 23111998.'• 
T.N. Singh;·ShiamNarain Singh, Ms.Asha Gopalan·Nair, Mrs. ·B.-Sunita. 
Rao, Shakil Ahmed Syed for the Appellant.• 
K.R. Sasiprabhu, Ramesh Babu M.R., Ms, Sushma Suri, Subramonium 
Prasad and Ms. Vibha Datta Makhija for the Respondent. 
The following Order of the·Court was delivered : 
The appellant was found guilty by the Special Judge, Vadakara, for the 
offence punishable under Section 21 of NDPS Act and was sentenced to 
undergo rigorous imprisonment for a period of l 0 years and a fine of Rs. l 
II 
604 
\ 
T.T.HANEEFAv. STATEOFKERALA 
605 
lakh, in default R. l: for one year. He challenged his conviction and sentence A 
and this appeal was rejected by the High Court. Aggrieved by the same the 
present appeal. 
The prosecution case was that on 24.1.1997 P.W.l, who is Circle 
Inspector of Police, Nadakkavu, found the appellant on a public road on the 
western side of Beach Hospital. PW-1 Circle Inspector had prior information B 
about the sale of brown sugar by some persons in the Beach road and .he 
recorded that statement and went to that place Pws. 2 and 3 were also present 
along with PW-1. When this police party went there, the appellant was 
standing on a foot path and PW-1 questioned him and told that he suspected 
that the appellant must have been carrying some narcotic drug. PW-1 told the C 
appellant that he has got right to demand the presence of a Magistrate when 
his body being searched. The appellant replied there is no such necessity of 
the presence of the Magistrate. PW-1 recorded that statement in Ext.P-1 
seizure mahazar and in the presence of two witnesses the appellant was 
searched and 3.700 grams of brown sugar was recovered from the left shirt 
sleeve of the appellant. The sample taken from the seized article was sent for D 
chemical analysis and it was proved to be brown sugar. 
The appellant had contended before the special Judge as well as the 
High Court that there was violation of section 50 ofNDPS Act. This plea was 
rejected and the appellant was accordingly convicted for the offence charged. 
We heard learned counsel for the appellant and learned counsel for the 
State. 
E 
The counsel for the appellant submits that under Section 50 of NDPS 
Act, accused should have been told that he has got a right to be searched 
in the presence of gazetted officer or a Magistrate and this option was not F 
given to the appellant and it was argued that in the instant case, the appellant 
was asked only whether he would like the presence of a Magistrate and in 
that way there was violation of Section 50 of NDPS Act. We are unable to 
agree with the plea raised by the appellant. Ext. p. l mahazar shows that before 
the search the appellant was asked whether he would like the presence of a G 
Magistrate, he declined to avail that privilege and thereafter the search was 
conducted and drug was recovered from his possession. 
The plain reading of Section 50 of NDPS Act does not show that the 
accused has got a right of option either a gazetted officer or the Magistrate, 
rather the option is for the officer who conducts the search. Section 50 of H 
606 
SUPREME COURT REPORTS (2004] SUPP. 1 S.C.R. 
A NDPS Act relevant portion reads as follows : 
"any officer duty authorised under Section 42 is about to search any 
person under the provisions of Section 41, Section 42 or Section 43, 
he shall, if such person so requires, take such person without 
unnecessa

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