VIJAYSINH CHANDUBHA JADEJA versus STATE OF GUJARAT

Citation: [2010] 13 S.C.R. 255 · Decided: 29-10-2010 · Supreme Court of India · Bench: D.K. JAIN · Disposal: Reference answered
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Judgment (excerpt)

[2010] 13 (ADDL.) S.C.R. 255 
VIJAYSINH CHANDUBHA JADEJA 
v. 
STATE OF GUJARAT 
(Criminal Appeal No. 943 of 2005) 
OCTOBER 29, 2010 
[D.K. JAIN, B. SUDERSHAN REDDY, DR. 
MUKUNDAKAM SHARMA; R.M. LODHA AND DEEPAK 
VERMA, JJ.] 
A 
B 
Narcotic Drugs and Psychotropic Substances Act, 1985: 
C 
Section 50 -
Search of persons (suspects) -
Requirements - Expression "if the person to be searched so 
requires" - Scope of - HELD: Obligation of the authorised 
officer under sub-s.(1) of s.50 is mandfjtory and requires a 
0 
strict compliance - The mandate of s. 50 is precise and clear 
- If the person intended to be searched expresses to the 
authorised officer his desire to be taken to the nearest 
gazetted officer or the Magistrate, he cannot be searched till · 
the gazetted officer or the Magistrate, as the case may be, 
directs the authorised officer to do so - The insertion of sub-
E 
ss. (5) and (6) does not obliterate the mandate of sub-s.(1) to 
inform the person to be searched of his right to be taken 
before a gazetted officer or Magistrate -Though s.50 gives an 
option to the empowered officer to take the suspect either 
before the nearest gazetted officer or the magistrate, but in 
F 
order to impart authenticity, transparency and credit worthiness 
to the entire proceedings, in the first instance, an endeavour 
should be made to produce the suspect before the nearest 
Magistrate. 
Section 50 - Object of - Explained. 
A Bench of three Judges of the Supreme Court 
before which the instant appeals were listed for hearing, 
255 
G 
H 
256 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R. 
A felt that there was divergence of opinion as regards the 
dictum laid down by the Constitution Bench of the Court 
in Baldev Singh's case1• The appeal was, therefore, 
referred to the Constitution Bench. The question for 
consideration before the Court was: "whether Section 50 
B of the Narcotic Drugs and Psychotropic Substances Act, 
1985 casts a duty on the empowered officer to 'inform' 
the suspect of his right to be searched in the presenc:e 
of a Gazetted Officer or a Magistrate, if he so desires or 
whether a mere enquiry by the said officer as to whether 
c the suspect would like to be searched in the presence of 
a Magistrate or a Gazetted Officer can be said to be due 
compliance with the mandate of the said Section?" 
D 
E 
Answering the reference, the Court 
HELD: 1.1 In order to prevent abuse of the provisions 
of the NDPS Act, which confer wide powers on the 
empowered officers, the safeguards provided by the 
Legislature have to be observed strictly. [para 12] [269-
A-B] 
1.2 The issue before the Court in terms of the referral 
order is not about the applicability of s.50 of the NDPS 
Act per se but is confined to the scope and width of the 
expression "if the person to be searched so requires" as 
figuring in sub-s. (1) of the said Section. However, it may 
be seen that while considering the question of 
compliance with s. 50 of the NDPS Act, the Constitution 
Bench in Baldev Singh considered the provisions of s. 41 
as well. [para 16] [271-G-H; 272-A-B] 
I 
1.3 The object with which the right u/s 50(1) of the 
NDPS Act, by way of a safeguard, has been conferred on 
the suspect, viz. to check the misuse of power, to avoid 
harm to innocent persons and to minimise the allegations 
1. 
State of Punjab vs. Baldev Singh 1999 (3) SCR 977. 
VIJAYSINH CHANDUBHA JADEJA v. STATE OF 
257 
GUJARAT 
of planting or foisting of false cases by the law A 
enforcement agencies, it would be imperative on the part 
of the empowered officer to apprise the suspect of his 
right to be searched before a gazetted officer or a 
· Magistrate. In so far as the obligation of the authorised 
officer under sub-s. (1) of s. 50 is concerned, it is 
B 
mandatory and requires a strict compliance. Failure to 
comply with the provision would render the recovery of 
the illicit article suspect and vitiate the conviction if the 
same is recorded only on the basis of the recovery of the 
illicit article from the person of the accused during such c 
search. Thereafter, the suspect may or may not choose 
to exercise the right provided to him under the said 
provision. [para 22] [278-8-E] 
Re: Presidential Poll 1975 (1) SCR 504 = 1974 (2) 
SCC 33 - referred to. 
D 
1.4 Section 50 prescribes the conditions under which 
personal search of a person is required to be conducted. 
Sub-s. (1) of the said Section provides that when the 
empowered officer is about to searc
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