CITATION | 2011 (1) SCC 609 |
DATE OF JUDGEMENT | 29th October, 2010 |
BENCH TYPE | Constitutional Bench |
COURT | Supreme Court of India |
JURISDICTION TYPE | Criminal Appellate Jurisdiction |
APPELLANT | Vijaysinh C. Jadeja |
RESPONDENT | State of Gujarat |
BENCH | Deepak Verma, R.M. Lodha, Mukundakam Sharma, B. Sudershan Reddy, D.K. Jain |
INTRODUCTION
This is a very important case which was decided in the year 2010. In this case, the Hon’ble Supreme Court laid that the provisions under section 50 of NDPS Act are deemed to be mandatory and not obligatory provisions and must be followed properly and if there is failure to follow it then the substance, they possess will be deemed to be suspicious and invalidatory for conviction. The case involves appellant Vijaysinh Chandubha Jadeja and respondent state of Gujarat with appellant lawyer Mr. P.H. Parekh and respondent lawyer, Mr. Siddharth Luthra. This case helped in curbing the NDPS Act especially Section 50 which was made to be a mandatory strict compliance.
FACTS OF THE CASE
There was ambiguity in section 50 of NDPS Act that whether there’d be a mere enquiry by the empowered officer to apprise the suspect to be searched by a nearest magistrate or a gazetted officer or whether the suspect should be apprised about his legal right when his search is conducted by a nearest magistrate or a gazetted officer.
Different cases were examined and the court found opposite views in the cases of Joseph Fernandez Vs State of Goa and Prabha Shankar Dubey Vs State of M.P in one hand and Krishna Kanwar (Smt) alias Thakuraeen Vs. State of Rajasthan in another hand.
In the former cases, it was held that if the searching officer asks the suspect whether to be searched by magistrate or a gazetted officer then it comes under the substantial compliance of Section 50 of NDPS Act and is considered to be mandatory but in the latter case, it was held that there is no specific method of initiation for conveying information required under Section 50 of NDPS Act and the main thing is that the accused should know about his right under section 50 of NDPS Act.
In the case of State of Punjab Vs Baldev Singh, the major issue was whether the given searching officer should merely ask his suspect if he requires a magistrate or a gazetted officer for the purpose of investigation or should the suspect be made aware of his right under section 50 of NDPS Act. The court in this case looked up to the above cases and laid down the judgement that there is no particular format prescribed as such for the purpose of search so the form of intimation can’t get derived. Therefore, there is no straitjacket formula as such.
The judgement laid down in Baldev Singh case was also considered to be ambiguous and conflicting. Therefore, this large bench was formed to remove the ambiguity in the judgement of Baldev Singh’s case and provide some clarity.
ISSUE RAISED
- Whether the given searching officer should merely ask his suspect if he requires a magistrate or a gazetted officer for the purpose of investigation or should the suspect be made aware of his right under section 50 of NDPS Act?
ARGUMENTS RAISED BY THE APPELLANT
The arguments were presented by Mr P.H. Parekh, a learned senior counsel for appellant.
- There should be a combined reading of 50(1) and 50(3) of NDPS Act and it shows that the suspect has vested right to be searched only by a magistrate or a gazetted officer and this concept has been explained in ambiguity in the case of Baldev Singh.
- The learned counsel also argued that the judgement laid down in Joseph Fernandez and Prabha Shankar Dubey about substantial compliance doesn’t come as a correct judgement in law. A “due procedure” clause should be applied under the procedure established by this act and it will provide safeguard to the suspect and no concept of arbitrariness of this act will arise as it will protect the suspect’s rights under article 21 of Indian constitution. The case of Beckodan Abdul Rahiman Vs. State of Kerala has already proved that due to strict provisions there was bulkiness of duty in the criminal proceedings.
- The concept of substantial compliance can’t be applied to neutralise any kind of protection as given by the legislature. Therefore, merely asking a suspect whether to be searched by a magistrate or a gazetted officer will not come under due compliance to this act.
ARGUMENTS RAISED BY THE RESPONDENT
The arguments were presented by Mr. Siddharth Luthra, a learned senior counsel on behalf of respondent.
- The strict provisions of section 50 of NDPS Act can’t be held applicable to those officers who are issued through warrant under section 41(1) of the said act and also to those gazetted officers who order such warrant for search under section 41(2) of this act.
- The learned counsel also argued that an officer issued through warrant by magistrate under section 41(1) wouldn’t fall within the purview of section 50(1) under NDPS Act. The interpretation of section 42 of NDPS Act is clearly applied to those officers as stated under section 42(1) and not a gazetted officer under 41(2) of the said act.
- It was further argued that the combined reading of subsections (1) and (3) of Section 50 of this act is not about a gazetted officer or a magistrate conducting a search but is about the right to be taken to the nearest magistrate or the gazetted officer and that, such magistrate or gazetted officer will decide whether to prevent the suspect from detention or to order to conduct a search. The reference was taken through the case of state of Rajasthan Vs Ram Chandra.
OBSERVATIONS BY THE SUPREME COURT
- Supreme Court in this case clearly examined the aforesaid sections such as 41, 42, 50 of the NDPS Act and it also examined the cases of Karnail Singh Vs State of Haryana and as well as State of Punjab Vs Baldev Singh.
- In the case of Karnail Singh, the issue was about validity of section 42 of NDPS Act in the purpose of search, seizure, arrest without warrant and authorization and the decision made in this case isn’t different from the decision taken in Baldev Singh case.
- The court also observed that the cases of Prabha Shankar Dubey and Joseph Fernandez ignored the dictum as laid down in the case of Baldev Singh which had the highest ratio judge bench as compared to them.
- The court also examined that if there is any kind of failure to inform the suspect who should be made aware of his right to be searched by either a gazetted officer or a magistrate would be unfair and discriminatory to an accused which will violate both his article 21 of Indian constitution.
JUDGEMENT BY SUPREME COURT
The judgement laid down by the Hon’ble Supreme Court was that they are in the favour that the concept of substantial compliance with requirement to section 50 of NDPS Act as claimed mandatory in the cases of Joseph Fernandez and Prabha Shankar Dubey is neither extracted from the provisions of section 50 and nor is consistent with the dictum laid down in the case of Baldev Singh.
The court also laid that it’s imperative to the given searching officer to inform the suspect whether they have intention to be searched about his right or to be searched by any gazetted officer or a nearest magistrate. The court also gave emphasis on section 50(1) of NDPS Act that the given officer is obliged to follow the provision strictly and it’s a mandatorily strict compliance.
CONCLUSION
To sum it up, this case was a remarkable case which cleared the ambiguity and ascertained the rights of the suspect whether to be searched about his right or to be searched by any gazetted officer or a nearest magistrate as stated under section 50 of NDPS Act. The authorised officer is obliged to follow the provision strictly and mandatorily as stated under Section 50 of the said act. This is so in order to prevent arbitrariness and provide fair justice to suspect so that it would not violate the article 21 of Indian constitution.
REFERENCE
This case analysis is written by Arpeeta Dash, a student of Symbiosis Law School, Nagpur; an intern under Legal Vidhiya.
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