2005 JTR(SC) 941
2005 12 SCC 574 ; 2006 1 SCC(Cri) 634
Supreme Court Of India
(Record of Proceedings)
ASHOK BHAN AND S.B. SINHA, JJ.
VIJAYSINH CHANDUBHA JADEJA- Petitioner
Versus
STATE OF GUJARAT- Respondent
SLP (Crl.) No. 4184 of 2004,
Decided on July 26, 2005
Advocates appeared
V.V. Lalit, Senior Advocate (Ms Ranjeeta Rohatgi and Arun Francis, Advocates for P.H. Parekh and Co.) for the Petitioner;
N. Madhukar, Ms Sadhna Sandhu and Ms Hemantika Wahi, Advocates, for the Respondent.
Act
Referred
:CONSTITUTION OF INDIA : Art.136
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT : S.50
Narcotic Drugs and Psychotropic Substances Act, 1985, Section 50 - Compliance 0f - Appellant convicted under Section 21 of the Act, and sentenced to undergo simple imprisonment for ten years with a fine of Rs. 1 lakh- The High Court converted SI to RI -Under S. 50 of the Act the accused has to be informed of his right to be searched in the presence of a Gazetted Officer or a Judicial Magistrate -Mere enquiry from the accused whether he would like to be searched in the presence of a Gazetted Officer or a Magistrate was not sufficient compliance - In view of conflicting opinions expressed by different Benches on the interpretation of the provisions of Section 50 of the Act in Baldev Singh case, (1999) 6 SCC 172 ,held the matter to be referred to a larger Bench of three Hon'ble Judges. Registry is directed to place the matter before the Hon'ble Chief Justice for appropriate orders.[Para 7]
Narcotic Drugs and Psychotropic Substances Act, 1985, Section 50 - Compliance 0f - Appellant convicted under Section 21 of the Act, and sentenced to undergo simple imprisonment for ten years with a fine of Rs. 1 lakh- The High Court converted SI to RI -Under S. 50 of the Act the accused has to be informed of his right to be searched in the presence of a Gazetted Officer or a Judicial Magistrate -Mere enquiry from the accused whether he would like to be searched in the presence of a Gazetted Officer or a Magistrate was not sufficient compliance - In view of conflicting opinions expressed by different Benches on the interpretation of the provisions of Section 50 of the Act in Baldev Singh case, (1999) 6 SCC 172 ,held the matter to be referred to a larger Bench of three Hon'ble Judges. Registry is directed to place the matter before the Hon'ble Chief Justice for appropriate orders.[Para 7]
Search - Referred to as a case taking a contradictory view on the interpretation of Section 50 of the NDPS Act subsequent to the Constitution Bench decision in Baldev Singh.
Search - Constitution Bench decision that held the accused must be informed of his right to be searched in the presence of a Gazetted Officer or Magistrate, and mere enquiry is not sufficient compliance with Section 50 of the Act.
Search - Referred to as a case taking a contradictory view on the interpretation of Section 50 of the NDPS Act subsequent to the Constitution Bench decision in Baldev Singh.
Search - Referred to as a case taking a contradictory view on the interpretation of Section 50 of the NDPS Act subsequent to the Constitution Bench decision in Baldev Singh.
Search - Cited as a case supporting the view that the accused must be informed of his right to be searched in the presence of a Gazetted Officer or Magistrate.
Search - Cited as a case supporting the view that the accused must be informed of his right to be searched in the presence of a Gazetted Officer or Magistrate.
Search - Mentioned as the case relied upon by the High Court, but is noted as taking a contradictory view to the Constitution Bench decision in Baldev Singh.
Search - Cited as a case supporting the view that the accused must be informed of his right to be searched in the presence of a Gazetted Officer or Magistrate.
ORDER
1. Delay condoned.
2. Leave granted.
3. The appellant was charged of possessing contraband article alleged to be brown sugar weighing 1350 milligram in Sankadi Sheri, near Bangadi Bazar, Rajkot.
4. The trial court convicted the appellant under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the Act") and sentenced him to undergo simple imprisonment for ten years with a fine of Rs 1 lakh.
5. Aggrieved against the order of the trial court, the accused-appellant filed an appeal before the High Court. The High Court while maintaining the sentence, converted the simple imprisonment into rigorous imprisonment.
6. One of the points raised before the High Court was with regard to the compliance with Section 50 of the Act i.e. the accused-appellant was not informed of his right to be searched in the presence of a Gazetted Officer or a Magistrate and that merely being asked as to whether the accused-appellant would like to be searched in the presence of a Gazetted Officer or a Magistrate would not be sufficient compliance with the provisions of Section 50 of the Act. This submission of the accused-appellant was turned down by the High Court relying upon a three-Judge Bench decision of this Court in Joseph Fernandez v. State of Goa1.
7. The High Court did not take note of the Constitution Bench decision in State of Punjab v. Baldev Singh2, wherein it was held that the accused has to be informed of his right to be searched in the presence of a Gazetted Officer or a Judicial Magistrate and mere enquiry from the accused whether he would like to be searched in the presence of a Gazetted Officer or a Magistrate was not sufficient compliance with the provisions of Section 50 of the Act. Following are the judgments of this Court which support this view:
State of Punjab v. Balbir Singh3 (by two Honble Judges) K. Mohanan v. State of Kerala4 (by two Honble Judges) Vinod v. State of Maharashtra5 (by two Honble Judges) Subsequent to the Constitution Bench decision in Baldev Singh case2, this Court in the following decisions rendered by different combination of Benches has taken contradictory views:
Joseph Fernandez v. State of Goa1 (by three Honble Judges) Prabha Shankar Dubey v. State of M.P.6 (by two Honble Judges) Krishna Kanwar v. State of Rajasthan7 (by two Honble Judges) State of H.P. v. Pawan Kumar8 (by three Honble Judges)
The conflict of opinion is on the interpretation of Section 50 of the Act as placed in Baldev Singh case2. In view of the conflicting opinions expressed by different Benches on the interpretation of the provisions of Section 50 of the Act in Baldev Singh case2, we deem it appropriate that the matter be referred to a larger Bench of three Honble Judges. Registry is directed to place the matter before the Honble Chief Justice for appropriate orders.
8. As the appellant has already undergone eight years of rigorous c imprisonment out of the total sentence of 10 years rigorous imprisonment awarded to him, hearing of the appeal be expedited. Liberty to mention.
Court Masters