Holding

A search of a person in the presence of a gazetted officer, even if that officer is part of the raiding party, complies with Section 50 of the NDPS Act provided the accused is informed of his right and consents, and therefore the conviction stands.

Summary

The State of Rajasthan appealed a conviction of Ram Chandra under Sections 8 and 18 of the NDPS Act, arguing that the High Court erred in holding that the search of the accused in the presence of Deputy Superintendent of Police (a gazetted officer who was part of the raiding party) violated Section 50. The Supreme Court examined the scope of Section 50, holding that it applies only to personal searches and requires the accused to be informed of his right to be searched before the nearest gazetted officer or magistrate, but the officer conducting the search may not act in a dual capacity as the gazetted officer. The Court found that the accused was properly informed, chose to be searched in the presence of the gazetted officer, and that the presence of the officer did not create a presumption of bias. Consequently, the search complied with Section 50 and the conviction was upheld. The appeal was allowed and the trial court’s judgment restored.

Issues considered

The applicability of Section 50 of the NDPS Act to personal searches versus searches of vehicles, containers or premises
Whether a search conducted in the presence of a gazetted officer who is part of the raiding party satisfies the requirements of Section 50
Whether the officer proposing the search can also act as the gazetted officer in whose presence the accused may opt
The legal effect of a presumption of bias arising from the gazetted officer’s participation in the raid
The consequence of non‑compliance with Section 50 on the validity of the conviction

Legislation cited

Narcotic Drugs and Psychotropic Substances Act, 1985s. 18, s. 41, s. 4(2), s. 42, s. 43, s. 50, s. 8

Subjects

NDPS ActSection 50personal searchgazetted officersearch safeguardsbias presumptiondrug offence conviction

Judgment

A STATE OF RAJAS THAN
v.
RAM CHANDRA

APRIL 12, 2005

B [ARIJIT PASAYAT AND S.H. KAPADIA, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985-Section 50 :

C Applicability of-Scope-Held: S.50 only applies to personal search of
an accused-Does not extend to search of a vehicle or container or bag or
premises.

Personal search :

D Option to accused to be searched in presence of any of the enumerated
categories of superior officers-Object and purpose of-Held : It acts as a
safeguard against vexatious search, unfair dealings and protects and safeguards
the interest of the innocent.

Option given to the accused is only to choose whether he would like to
E be searched by the officer making the search or in the presence of the nearest
available Gazetted Officer or the nearest available Magistrate-The choice of
the nearest Gazetted Officer or the nearest Magistrate has to be exercised by
the officer making the search and not by the accused

Officer proposing to effect search, if himself is a Gazetted Officer-He
F cannot act in dual capacity as Officer searching and also as Officer in whose
presence search is effected

Authorised officer gave accused-respondent the option of being searched
in presence of a Police Officer of gazetted rank, or the nearest Magistrate-
He opted for search in presence of the Police Officer-Held : Search thus
G conducted did not violate S.50-View of High Court that the search violated
S.50 since the Police Officer was a member of the raiding party is not legally
tenable-High Court erred in presuming bias on part of the Police Officer on
the ground that he was accompanying the officer authorized-In any event, on
facts, the question of bias or prejudice does not arise since he reached the
H 496
ST A TE OF RAJAS THAN v. RAM CHANDRA 497
spot only after the accused was detained A
The question which arose for consideration in the present appeal is
whether the High Court erred in holding that though the accused-
respondent had been given the option of being searched in presence of
PW3- the Deputy Superintendent of Police, a police officer of the gazetted
rank, but since PW3 was a member of the raiding party, the search in his B
presence cannot at all be said to be in consonance with Section 50 of the
Narcotic Drugs and Psychotropic Substances Act, 1985.

J Allowing the appeal, the Court
i
HELD : 1. The High Court was not correct in holding that the search C
in the presence of PW-3 was not in compliance with the requirements of
Section 50 of the Narcotics Drugs and Psychotropic Substances Act, 1985
(NDPS Act). The judgment of the Trial Court convicting the accused-
respondent in terms of Sections 8 and 18 of the NDPS Act is restored.
(507-C; 508-G) D
2.1. Section 50 of the NDPS Act only applies in case of personal
search of a person. It does not extend to search of a vehicle or a container
or a bag, or premises. It comes in operation when an officer authorized
in terms of Section 42 is to ~earch any person, under the provisions of
Sections 41, 42 and 43. Here comes the requirement of informing the E
· person about to be searched to exercise his option to be searched in the
presence of nearest Gazetted Officer, of any of the departments mentioned
in Section 42 or the nearest Magistrate. (502-C; 505-G)

2.2. There is no specific form prescribed or intended for conveying
the information required to be given under Section 50. Since no specific p
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 formula. (504-B-CJ
G
State of Punjab v. Baldev Singh, [1999) 6 SCC 172, followed.

Kalema Tumba v. State of Maharashtra and Anr., JT (1999) 8 SC 293;
Gurbax Singh v. State of Haryana, (200113 SCC 28; Raghbir Singh v. State
of Haryana, (1996) 2 SCC 201; Prabha Shankar Dubey v. State of Madhya
Pradesh, (2003) AIR SCW 6592; Madan Lal and Anr. v. State of Himachal H
498 SUPREME COURT REPORTS [2005] 3 S.C.R.

A Pradesh, (2003) 6 Supreme 382 and Smt. Krishna Kanwar@ Thakuraeen v.
State of Rajasthan, JT (2004) 1 SC 597, relied on.
r
I
3.1. The NDPS Act affords the person to be searched a safeguard to ~

the effect that he may require the search to be conducted in the presence
of a senior officer. The senior officer may be a Gazetted Officer or a I
B Magistrate depending upon who is conveniently available. That being the
purpose of the NDPS Act, if any Gazetted Officer even if he is a police __,,
officer of a particular rank is present nearby when the accused is detained,
the accused may be asked as to whether he would like to be searched in :1
the presence of that officer or a Magistrate. (506-A-B) i
c 3.2. The option given to the accused is only to choose' whether he
would like to be searched by the officer making the search or in the
presence of the nearest available Gazetted Officer or the nearest available
Magistrate. The choice of the nearest Gazetted Officer or the nearest
Magistrate has to be exercised by the officer making the search and not
D by the accused. In the instant case all the options were made known to
the accused and he himself opted to be searched in the presence of the
Deputy Superintendent of Police (PW-3). (506-D-E)
. .. .
Raghbir Singh v. State of Haryana, (1996) 2 SCC 201, relied on.

E 4. The conclusions of the High Court would have been correct if the
oft:icer proposing to effect the search is a Gazetted Officer and he gives
option to be given under Section 50 to the person detained to be searched
in his presence. In that event, the requirement of Section 50 would not be
met because the officer proposing to effect the search cannot act in dual
capacity; first as an officer authorized under Section 42 to search a person
F and second as the Gazetted Officer in whose presence the accused may
opt to be searched. (506-H; 507-A)
'.,'

5. The object of the NDPS Act being that the search is conducted in
the presence of a superior officer, in order to lend transparency and ~

'
authenticity to the search it cannot be held as a principle in law that if a
G superior officer happens to be with the officer authorized (which the High I

Court has described as being a member of the raiding party) the position --41
would be different. The High Court proceeds on the basis that there may l
ii
be bias on the part of the officer because he was accompanying the officer
authorized. Such a presumption is not legally available; The question of
H prejudice or bias has to be established and not inferred. (507-B-C; 507-F)
~
STATE OF RAJASTHAN v. RAM CHANDRA[PASAYAT • .I.] 499

S. Jeevanatham v. State through Inspector of Police, T.N., [20041 5 SCC A
230 and State represented by Inspector of Police, Vigilance and Anti-
corruption, Tiruchirapalli, T.N. v. Jayapaul, (20041 5 SCC 223, referred to.

6.1. The object of requiring the search to be conducted if so required
before the specified Gazetted officer or nearest Magistrate is to ensure
that the officers who are charged with a duty of conducting search conduct B
them properly and do no harm or wrong such as planting of an offending
drug by any interested party and preventing fabrication of any false
evidence. The provision in essence intends to act as a safeguard against
vexatious search, unfair dealings and to protect and safeguard the interest
of innocent persons. [508-C-D) C
6.2. In fact, in order to avoid arrest and nip the investigation in the
bud thereby protecting the liberty of a person, a statutory safeguard is
provided in sub-section (3) of Section 50. Power has been vested in the
Magistrate or the Gazetted Officer before whom the concerned person is
brought on his requisition made under sub-section (2) to. forthwith D
discharge the person without formal proceedings on his satisfaction that
there is no reasonable ground for search. As a consequence, search takes
place only when he declines to discharge such a person. [508.;E)

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 541 E
of 2005.

From the Judgment and Order dated 8.1.2002 of the Rajasthan High
Court in S.B.Crl.A. No. 129 of 1997.

Aruneshwar Gupta, Additional Solicitor General, Naveen Kumar Singh, F
Ms. Shivangi and Ashok K. Mahajan with him for the Appellant.

Lakhan Singh Chauhan and Dr. Kailash Chand for the Respondent.

The Judgment of the Court was delivered .by
G
ARIJIT PASAYAT, J. Leave granted.

·The ,State of Rajasthan is in appeal against the judgment of learned
Single Judge, Rajasthan High Court, Jaipur Bench, Jaipur holding that there
was_ non-compliance with the mandatory requirements of Section 50 of
Nart:otic Drugs and Psychotropic Substances Act, 1985 (in short the 'Act'). H
500 SUPREME COURT REPORTS [2005] 3 S.C.R.

A The said conclusion was arrived at on the ground that though the accused
respondent had been given the option of being searched in the presence of
Shri Satyender Singh (PW-3), the Deputy Superintendent of Police, he was
in essence a member of the raiding party and, therefore, the search in his
presence cannot at all be said to be in consonance with Section 50 of the Act,
B · though he was a Gazetted Officer.
Background facts in a nutshell are as under :

On 8.9.1995 Prem Shaker Meena (PW-2), SHO Police Station, Kotwali,
Baran having received information about illicit trafficking in narcotic :~
\,
C substances, rushed to the place pointed out by.the infonnant and apprehended
the accused respondent. Satyendra Singh, Dy. S.P. (PW-3) also reached there.
Subsequently, being of the suspicion that accused respondent was in possession
of contraband, the SHO infonned him of his right to have his search.conducted
either in presence of Shri Satyendra Singh, Dy. S.P. (PW-3) who was a
Gazetted Officer and happened to be present there or in the presence of any
D magistrate. The accused consented for his search to be conduc~ed in the
presence of the Dy. S.P. (PW-3). On being searched, 570 grams of opium
was recovered from his possession 'in the presence of Ramesh Chand (PW-
5) and Rajendra Kumar (PW-6). Out of the recovered opium; a sample ;
......
weighing 30 grams was taken and was sealed. The remaining opium was also
E sealed. The accused was accordingly arrested vide arrest memo Ex.P-5. and
memo of recovery was prepared. The SHO, thereafter, registered a case vide
FIR Ex.P-4 and deposited the recovered opium in the 'Malkhana'. During
investigation, the police recorded the statement of witnesses and sent the
sample to the Forensic Science Laboratory. On chemical examination, the
F sample contained in the packet marked 'B' gave positive tests for the chief
constituents of coagulated juice of opium poppy having 5.43% morphine.

After completion of all these forinalities, the accused was charge sheeted
under Sections 8 and 18 of the Act. The Trial Judge framed charges against
the accused under Sections 8 and 18 of the Act, to which the accused denied
G and claimed trial.

The learned Sessions Judge, Baran held that 'the accused was guilty,
convicted him in tenns of Sections 8 and 18 of the Act and sentenced him
to undergo 10 years RI with a fine of rupees one lakh with a default stipulation
of one year's RI.
H
STATE OF RAJASTHAN v. RAM CHANDRA [PASA YAT, J.] 501
In appeal, the main stand of the accused respondent was that there was A
non-compliance with the requirements of Sections 42 and 50 of the Act. The
High Court held that since the accused was searched on a public road and the
contraband articles were seized, Section 42 of the Act had no application in
view of Explanation appended to Section 43 of the Act. It was noted that
Prem Shanker (PW-2) who was an authorized officer under Section 42 of the B
Act informed the accused of his right to be searched in the presence of the
Deputy Superintendent of Police (PW-3) who happened to be a Gazetted
Officer and was present at the site and if he desired, he can be taken to any
Magistrate. The accused consented for his search in the presence of the
Deputy Superintendent of Police and accordingly search was conducted in
the presence of PW-3, the Deputy Superintendent of Police which was C
witnessed by other witnesses, Ramesh Chandra (PW-5) and Rajendra Kumar
(PW-6). But, it was held that the consent given by the accused to be searched
in the presence of the Deputy Superintendent of Police (PW-3) was not
sufficient compliance of Section 50 of the Act.

Learned counsel appearing for the State of Rajasthan submitted that the D
High Court's approach is clearly erroneous. It is not a fact that PW-3 was a

- member of the raiding party as was observed by the High Court. Further,
option was given to the accused to be searched in the presence of PW-3 or
if he wanted he could be taken to the Magistrate. The accused himself having
consented to be searched in the presence of PW-3, there was no infirmity. E
In response, learned counsel for the accused-respondent submitted that
more trust is put on the Gazetted Officer and, therefore, the High Court wa~
right in holding that the accused should have taken to some other Gazetted
Officer.
F
Only question to be adjudicated is the alleged non-compliance of Section
50. The said provision reads as follows :

"50. Conditions under which search of persons shall be conducied~ .

(1) When any officer duly authorised under Section 42 is about to G
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 unnecessary delay to the nearest gazetted officer of any of
the departments mentioned in Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until H
502 SUPREME COURT REPORTS (2005) 3 S.C.R.

A he can bring him before the gazetted officer or the Magistrate referred
to in sub-section ( 1).

(3) The gazetted officer or the Magistrate before whom any such
person is brought shall, if he sees no reasonable ground for search,
forthwith discharge the person but otherwise shall direct that search
B be made.

(4) No female shall be searched by anyone excepting a female."
-
~
I

A bare reading of Section 50 shows that it only applies in case of
personal search of a person. It does not extend to search of a vehicle or a
C container or a bag, or premises. (See Kalema Tumba v. State of Maharashtra
and Anr.. JT (1999) 8 SC 293, State of Punjab v. Baldev Singh, [1999] 6
SCC 172 and Gurbax Singh v. State of Haryana, [2001] 3 SCC 28. The
language of Section 50 is implicitly clear that the search has to be in relation
to a person as contrasted to search of premises, vehicles or articles. This
D position was settled beyond doubt by the Constitution Bench in Baldev Singh 's
case (supra).

In order to appreciate rival submissions, some of the observations made
by the Constitution Bench in Baldev Singh 's case (supra) are required to be
noted. It is also to be noted that the Court did not in the abstract decide
E whether Section 50 was directory or mandatory in nature. It was held that the
provisions to the Act implicitly make it imperative and obligatory and casts
a duty on the investigating officer (empowered officer) to ensure that search
of the person (suspect) concerned is conducted in the manner prescribed by
Section 50 by intimating to the person concerned about the existence of his
right that if he so requires, he shall be searched before a Gazetted Officer or
F a Magistrate and in case he so opts, failure to conduct his search before a
Gazetted Officer or a Magistrate would cause prejudice to the accused and
render the recovery of the illicit articles suspect and vitiate the conviction
and sentence of the accused. Where the conviction has been recorded only on
the basis of the possession of the illicit article recovered during a search
G conducted in violation of the provisions of Section 50 of the Act, it was
illegal. It was further held that the omission may not vitiate the trial as such,
but because of the inherent prejudice which would be caused to an accused
by the omission to be informed of the existence of his right, it would render
his conviction and sentence unsustainable. In paragraph 32 of the judgment
(at page 200) this position was highlighted. In para 57, inter alia, the following
H conclusions were arrived at :
'

STATE OF RAJASTHAN v. RAM CHANDRA [PASAYAT, J.] 503

"(I) That when an empowered officer or a duly authorized officer A
acting on prior information is about to search a person, it is imperative
for him to inform the person concerned of his right under sub-section
(1) of Section 50 of the Act of being taken to the nearest gazetted
officer or nearest Magistrate for making the search. However, such
information may not necessarily be in writing.
B
(2) That failure to inform the person concerned about the existence
of his right to be searched before a gazetted officer or a Magistrate
would cause prejudice to an accused.

(3) That a search made by an empowered officer, on prior information,
without informing the person of his right that if he so requires, he C
shall be taken before a gazetted officer or a Magistrate for search and
in case he so opts, failure to conduct his search before a gazetted
officer or a Magistrate, may not vitiate the trial but would render the
recovery of the illicit article suspect and vitiate the conviction and
sentence of an accused, where the conviction has been recorded only D
on the basis of the possession of the illicit article, recovered from his
person, during a search conducted in violation of the provisions of
Section 50 of the Act.

(4) That whether or not the safeguards provided in Section 50 have
been duly observed would have to be determined by the court on the E
basis of the evidence led at the trial. Finding on that issue, one way
or the other would be relevant for recording an order of conviction
or acquittal. Without giving an opportunity to the prosecution tr.
establish, at the trial, that the provisions of Section 50 and, particularly,
the safeguards provided therein were duly complied with, it would
not be permissible to cut short a criminal trial. F
(5) That in the context in which the protection has been incorporated
in Section 50 for the benefit of the person intended to be searched,
we do not express any opinion whether the provisions of Section 50
are mandatory or directory, but hold that failure to inform the person
concerned of his right as emanating from sub-section (1) of Section G
50 and render the recovery of the contraband suspect and the
conviction and sentence of an accused bad and unsustainable in law.

(6) That an illicit article seized from the person of an accused during
search conducted in violation of the safeguards provided in Section
50 of the Act cannot be used as evidence of proof of unlawful H
504 SUPREME COURT REPORTS [2005) 3 S.C.R.

A possession of the contraband on the accused though any other material
recovered during that search may be relied upon by the prosecution,
in other proceedings, against an accused, notwithstanding the recovery
of that material during an illegal search."

It is not disputed that there is no specific form prescribed or intended
B for conveying the information required to be given under Section 50. What
is necessary is that the accused (suspect) should be made aware of the existence
of his right to be searched in 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
C 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 formula.

Section 50 does not involve any self-incrimination. It is only a procedure
required to protect the rights of an accused (suspect) being made aware of the
D 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
' transparency in the process of search has been given the primacy. In Raghbir
Singh v. State of Haryana, [1996] 2 SCC 201, the true essence of Section 50
E was highlighted in the following manner :
"8. The very question that is referred to us came to be considered by
a Bench of two learned Judges on 22.1.1996 in Manohar Lal v. State
of Rajasthan (Crl.M.P.No.138/96 in SLP(Crl.) No. 184/1996). One of
· us (Verma, J), speaking for the Bench, held :
F
"It is clear from Section 50 of the NDPS Act that the option
given thereby to the accused is only to choose whether he would
like to be searched by the officer making the search or in the
presence of the nearest available Gazetted Officer or the nearest
available Magistrate. The choice of the nearest Gazetted Officer
G or the nearest Magistrate has to be exercised by the officer making
the search and not by the accused".

9. We concur with the view taken in Manohar La/'s case supra.

10. Finding a person to be in possession of articles which are illicit
H under the provisions of the Act has the consequence of requiring him

lr
STATE OF RAJASTHAN v. RAM CHANDRA [PASAYAT, J.] 505
to prove that he was not in contravention of its provisions and it A
renders him liable to severe punishment. It is, therefore, that the Act
affords the person to be searched a safeguard. He may require the
search to be conducted in the presence of a senior officer. The senior
officer may be a Gazetted Officer or a Magistrate, depending upon
who is conveniently available.
B
l l. The option under Section 50 of the 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 presence of either a Gazetted
Officer or of being searched in the presence of a Magistrate. The use
of the word 'nearest' in Section 50 is relevant. The search has to be C
conducted 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".
D
As has been highlighted in Baldev Singh 's case (supra) it has to be seen
and gauzed whether the requirements of Section 50 have been met. Section
50 in reality provides for additional safeguards which are not specifically
provided by the statute. The stress is on the adoption of a reasonable, fair and
just procedure. No specific words are necessary to be used to convey existence E
of the right.

The above position was elaborately dealt with in Prahha Shankar Dubey
v. State of Madhya Pradesh, (2003) AIR SCW 6592 and in Madan Lal and
Anr. v. State of Himahal Pradesh, (2003) 6 Supreme 382.

These aspects were highlighted and reiterated in Smt. Krishna Kanwar
F
@ Thakuraeen v. State of Rajasthan, JT (2004) 1 SC 597.

Section 50 of the Act deals with conditions under which search of a
person shall be conducted. Section 50 comes in operation when an officer
authorized in terms of Section 42 is to search any person, under the provisions G
of Sections 41, 42 and 43. Here comes the requirement of informing the
person about to be searched to exercise his option to be searched in the
presence of nearest Gazetted Officer, of any of the departments mentioned in
Section 42 or the nearest Magistrate.

If the person so requires, the officer referred to under sub-section (l) H
506 SUPREME COURT REPORTS [2005] 3 S.C.R.

A of Section 50 may detain the person to bring him before the Gazetted Officer
or the Magistrate, as the case may be. As was noticed in Raghbir Singh 's
case (supra) the Act affords the person to be searched a safeguard to the
effect that he may require the search to be conducted in the presence of a
senior officer. The senior officer may be a Gazetted Officer or a Magistrate
B depending upon who is conveniently available. That being the purpose of the
Act, if any Gazetted Officer even if he is a police officer of a particular rank
is present nearby when the accused is detained, the accused may be asked as
to whether he would like to be searched in the presence of that officer or a
Magistrate. The foundation of the stand taken by the accused-respondent
which found favour with the High Court is that if he is a member of the
C raiding party the requirements of Section 50 are not met. This is not legally
tenable, and in any event on the facts of the present case it was not so
because PW-3, the Deputy Superintendent of Police reached the spot after the
person was detained.

D As noted above, in Raghbir Singh 's case (supra) the option given to the
accused is only to choose whether he would like to be searched by the officer
making the search or in the presence of the nearest available Gazetted Officer
or the nearest available Magistrate. The choice of the nearest Gazetted Officer
or the nearest Magistrate has to be exercised by the officer making the search
and not by the accused. In the instant case all the options were made known
E to the accused and he himself opted to be searched in the presence of the
Deputy Superintendent of Police (PW-3).

Sections 41, 42, 43 or Section 50 do not speak of a raiding party.
Section 4 J(2) speaks of arrest by any officer of gazetted rank of enumerated
department or by an officer subordinate to him (but superior in rank to a
F peon, sepoy or a constable) to arrest such a person. Under sub-section (1) of
Section 41 a warrant may be addressed to an officer for arrest of a person
under circumstances enumerated in the said provision. Section 42 deals with
action permissible to be taken by an officer authorized. Section 43 deals with
power of an officer of any of the departments mentioned in Section 42. The
G officer exercising power under Sections 41, 42 and 43 can take assistance of
others for the purpose of carrying out the prescribed acts.

The conclusions of the High Court would have been correct if the
officer proposing to effect the search is a Gazetted Officer and he gives
option to be given under Section 50 to the person detained to be searched in
H his presence. In that event, the requirement of Section 50 would not be met
STATE OF RAJASTHAN v. RAM CHANDRA [PASAYAT, J.] 507

because the officer proposing to effect the search cannot act in dual capacity; A
first as an officer authorized under Section 42 to search a person and second
as the Gazetted Officer in whose presence the accused may opt to be searched.

The object of the Act being that the search is conducted in the presence
of a superior officer, in order to lend transparency and authenticity to the

- search it cannot be held as a principle in law that if a superior officer happens
to be with the officer authorized (which the High Court has described as
being a member of the raiding party) the position would be different. The
High Court proceeds on the basis that there may be bias on the part of the
B

officer because he was accompanying the officer authorized. Such a
presumption is not legally available. C
The High Court was, therefore, not correct in holding that the search
in the presence of PW-3 was not in compliance with the requirements of
Section 50. Stress is on the search being conducted in the presence of any of
the enumerated categories of the officers. In S. Jeevanatham v. State through
Inspector of Police, T.N., [2004] 5 SCC 230, it was contended by the accused D

..
that investigation having been conducted by the complainant-police officer,
the conviction in terms of Section 8(c) read with Section 20(b)(ii) of the Act
was vitiated. The plea was repelled relying on the decision of this Court in
State represented by Inspector of Police, Vigilance and Anti-corruption,
Tiruchirapal/i, T.N. v. Jayapau/, [2004] 5 SCC 223. It was observed that
nothing was pointed out to show that the investigation had caused prejudice E
or was biased against the accused. In the instant case, the accused was informed
of his rights and options to be exercised. He consented to be searched in the
presence of PW-3. Therefore, it was not open to him even to urge non-
compliance of Section 50.

In fact in S. Jeevanatham 's case (supra) this Court did not accept the
F
plea that an officer who was the complainant cannot be the investigating
officer. The question of prejudice or bias has to be established and not inferred.
In any event, there cannot be any legal presumption in that regard. At this
juncture, it is to be noted that under sub-section (3) of Section 50, the Gazetted
Officer or the Magistrate before whom the person who is to be searched is G
brought can, in a given case, come to hold that there is no reasonable ground
for the search and shall forthwith "discharge" the person. Otherwise, he shall
direct the search to be made. The expression 'discharge' used in sub-section
(3) of Section 50 is used in the sense that the detention is terminated.

The powers to detain, search and arrest have been conferred by Sections H
508 SUPREME COURT REPORTS [2005) 3 S.C.R.

A 41(2), 42 and 43. Under Section 42(l)(d) the officer authorized may between
sunrise and sunset detain and search and if he thinks p,roper arrest any iperson
who he has reason to believe has committed an offence punishable under
Chapter IV relating to the notified drug or substance. The question of arrest
comes after a person is detained and searched and thereafter if the officer
thinks proper arrest can be effected on the foundation that the officer has
B reason to believe that the person so detained and searched has committed an ...........
('
offence punishable under Chapter IV. It cannot be said that the person
accompanying the officer authorized cannot say 'No' to the proposed search
even if he sees no reasonable ground for search. It is the legislative trust
imposed on a superior officer to act fairly and reasonably. Therefore, it is for
C the accused to establish prejudice which is to be done at the trial. On the facts
of the case, actually these questions do not arise. The object of requiring the
search to be conducted if so required before the specified Gazetted officer or
nearest Magistrate is to ensure that the officers who are charged with a duty
of conducting search conduct them properly and do no harm or wrong such
as planting of an offending drug by any interested party. and preventing
D fabrication of any false evidence. The provision in essence intends to act as
a safeguard against vexatious search, unfair dealings and to protect and
safeguard the interest of innocent persons. In order to avoid arrest and nip the
investigation in the bud thereby protecting the liberty of a person, a statutory
safeguard is provided in sub-section (3) of Section 50. Power has been vested
E in the Magistrate or the Gazetted Officer before whom the concerned person
is brought on his requisition made under sub-section (2) to forthwith discharge
the person without formal proceedings on his satisfaction that there is no
reasonable ground for search. As a consequence, search takes place only
when he declines to discharge such a person.

F Firstly, as noted above PW-3 arrived at the spot after the person was
detained and search was proposed to be done by the officer authorized.
Secondly, the respondent-accused was given the option as to whether he
would like to be searched in the presence of PW-3 or the nearest magistrate.
He exercised his. option to be searched in the presence of PW-3.

G High Court's conclusions are clearly untenable. The inevitable result is
that the High Court's judgment is indefensible and is set aside and that of the
trial Court is restored. The accused shall surrender to custody forthwith to
serve the reinainder of the sentence. Appeal is allowed.

H B.B.B. Appeal allowed.