However, he admitted that there is no mention in the consent letters that the appellants were informed that they have a right to say that their body search should be conducted before a Magistrate or a Gazetted Officer.
The same reads thus: “Consent-letter was prepared before taking search of accused, on which Exhibit Ka-1 is marked.
There is no mention in this consent-letter that it is right of accused that they can give their body search before some Magistrate or Gazetted Officer.
Thus, it is an admitted position that in the consent letter, it is not mentioned that the appellants were informed about their right to insist that either a Magistrate or a Gazetted Officer remains present when their body search is conducted.
Also Read: https://newslaw.in/supreme-court/extension-of-benefit-of-doubt-in-criminal-convictions/
Although the Constitution Bench in Baldev Singh case [(1999) 6 SCC 172 : SCC (Cri) 1080] did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held 1 3 that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to “inform” the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to “inform” the suspect about the existence of his said right would cause prejudice to him, 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 on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act.
The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.”
(underlines supplied) 9.
Also Read: https://newslaw.in/supreme-court/vicarious-liability-under-section-34-of-ipc/
Therefore, the conviction of the appellants cannot be sustained.
Case Title: MINA PUN Vs. STATE OF UTTAR PRADESH
Case Number: Crl.A. No.-002499-002499 / 2023
