Ashok Kumar Sharma vs. State of Rajasthan, Criminal Appeal No. 817 of 2008, Decided on January 9th,
2013
The question was whether the
empowered officer, acting under Section 50 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’) is legally obliged
to apprise the accused of his right to be searched before a Gazetted Officer or
a Magistrate and whether such a procedure is mandatory under the provisions of
the NDPS Act.
Appellant-accused argued that the conviction was vitiated by
the non-compliance of the procedure laid down in Section 50 of the NDPS Act.
The Hon’ble Supreme Court held that:
“We are of the view that there is an
obligation on the part of the empowered officer to inform the accused or the
suspect of the existence of such a right to be searched before a Gazetted
Officer or a Magistrate, if so required by him. Only if the suspect does not
choose to exercise the right in spite of apprising him of his right, the
empowered officer could conduct the search on the body of the person”.
[Para 8]
“We may, in this connection, also examine the
general maxim “ignorantia juris non excusat” and whether in such a situation
the accused could take a defence that he was unaware of the procedure laid down
in Section 50 of the NDPS Act. Ignorance does not normally afford any defence
under the criminal law, since a person is presumed to know the law.
Indisputedly ignorance of law often in reality exists, though as a general
proposition, it is true, that knowledge of law must be imputed to every person.
But it must be too much to impute knowledge in certain situations, for example,
we cannot expect a rustic villager, totally illiterate, a poor man on the
street, to be aware of the various law laid down in this country i.e. leave
aside the NDPS Act. We notice this fact is also within the knowledge of the
legislature, possibly for that reason the legislature in its wisdom imposed an
obligation on the authorized officer acting under Section 50 of the NDPS Act to
inform the suspect of his right under Section 50 to be searched in the presence
of a Gazetted Officer or a Magistrate warranting strict compliance of that
procedure”. [Para 9]
On the facts of the case the
Court held:
“We are of the view that non-compliance of
this mandatory procedure has vitiated the entire proceedings initiated against
the accused-appellant. We are of the view that the Special Court as well as the
High Court has committed an error in not properly appreciating the scope of
Section 50 of the NDPS Act”. [Para 10]
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