Case Title:
Vijaysinh Chandubha Jadeja Vs State Of Gujarat
Date:
29th October, 2010
Bench:
D.K. Jain, B. Sudershan Reddy, Mukundakam Sharma, R.M. Lodha, Deepak Verma.
Parties:
Appellant – Vijaysinh Chandubha Jadeja
Respondent – State of Gujarat
Subject
An appeal was filed challenging the degree of compliance associated with Section 50 of the NDPS Act and arguing that substantial compliance of the provision was ‘bad in law’.
Important Provisions
Section 50 of the NDPS Act - Conditions under which search of persons shall be conducted.
Section 41 of the NDPS Act - Power to issue warrant and authorisation.
Overview
The appeal came up before a bench of three judges.
There was a divergence of opinion in the decisions made by the court in the case of Joseph Fernandez Vs. State of Goa, Prabha Shankar Dubey Vs. State of M.P and Krishna Kanwar Vs. State of Rajasthan with regard to judgment given by the court in State of Punjab Vs. Baldev Singh.
In the case of Fernandez vs. State of Goa and Prabha Shankar Dubey it was held that mere asking of whether the suspect would like to be produced before the magistrate or gazetted officer was said to be in substantial compliance of Section 50 of the NDPS Act.
Issues raised
Whether the suspect should be made aware of his right to be searched by a gazetted officer or a magistrate or mere asking of whether he would like to be produced before magistrate or gazetted officer was needed?
Advancements made by the appellants
- The learned counsel for the appellants argued that section 50 of the NDPS Act should be employed effectively and honestly.
- Section 50 of the NDPS Act was the only safeguard provided to a suspect under the act, thereby only substantial compliance was ‘bad in law’ and cannot be applied to neutralise important safeguard provided by the legislature.
- The safeguard provided under Section 50 of the NDPS Act was to ensure that the powers under the Act are not being abused.
Advancements made by the Respondents
- The learned counsel for the respondents argued that an officer who was given a warrant by the magistrate under Section 41(1) would not fall under the ambit of Section 50(1) of the NDPS Act.
- The right granted to a suspect was not the right to be searched before the nearest magistrate or gazetted officer but the right to be taken to the magistrate or gazetted officer.
- The learned counsel for the respondents placed reliance on the decision made by the Court in the case of State of Rajasthan Vs. Ram Chandra.
Judgment Analysis
The Hon’ble Court stated that the 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 Although the Constitution Bench did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory the failure to inform the said right would cause prejudice to a suspect. It would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. The court held that the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance.
Conclusion
The Court concluded by allowing the appeal and stating that Section 50 of the NDPS Act was mandatory and should be strictly complied with. Substantial compliance was not allowed as this provision is a safeguard for suspects under the NDPS Act.
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