T.T. HANEEFAversusSTATE OF KERALA

A                                    T.T. HANEEFA
                                           v.
                                  STATE 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.ofnarcotic 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.

           Beckodan Abdul Rahiman ·v;- State of Kera/a, (2002) 4 SCC 229,
     distinguished.
E
             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.'•
F
          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.
G
             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.
                                                                                       E
             We heard learned counsel for the appellant and learned counsel for the
    State.

          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
            unnecessary delay to the nearest Gazetted Officer of any of the
B           departments mentioned in Section 42 or to the nearest Magistrate".

           If the accused says that search shall be in the presence of gazetted
    officer or Magistrate, the officer can choose any one ofthe:m depending upon
    the availability of gazetted officer or the Magistrate. In this case the appellant
    was given an option to be searched in the presence of Magistrate, he did not
C   exercise that right. The counsel for the appellant drew our attention to the
    decision of this Court in Beckodan Abdul Rahiman v. State of Kera/a, [2002]
    4 sec 229, wherein this Court held that there was violation of Article 50 of I
    NDPS Act. It is pertinent to note that the nature or option given to the·-
    accused by the searching officer° and the facts show that in that case the
D   inquiry was made by the searching officer as to whether the accused would
    like to meet any ·higher officer or a gazetted officer and the accused replied
    in negative. These words used by the searching officer were certainly not in'
    compliance o~ Section 50 ofNDPS Act. It was in that background this Court
    set aside the conviction on the ground that there was violation of Section 50
    of NDPS Act. In the instant case, we do not think there is any violation of
E   Section 50 of NDPS Act, as the accused was given the right to be searched
    in the presence of a Magistrate as he failed to opt for that we do not think
    that there was any procedural illegality.

         The appellant was in possession of narcotic drug and evidence of the
F   prosecution proved that the offence was committed. There is no merit in the
    appeal and appeal is dismissed accordingly.

           The appellant was granted bail by this Court on 13-10-2003. The appellant
    is directed to surrender to his bail bonds within a period of two weeks failing
    which the special Judge takes appropriate steps to arrest the appellant to
G   undergo remaining part of the sentence.

    RP.                                                         Appeal dismissed.