Amendment status not verified — confirm the current text below against the official source.
Recovery - Right of accused to get himself searched in presence of Gazetted officer. - Although the question whether the concerned officer duly empowered or the police officer conducting search of a person suspected of the possession of such psychotropic substances is bound to inform the suspect of his right to get himself searched in the presence of a gazetted officer or the nearest Magistrate was not referred to the Full Bench for decision, yet, on his request of the learned counsel for the parties, we consider it desirable to settle this controversy. In this regard, it is not worthy that every person is supposed to know the law of the land. The provisions of Section 50 do not provide at all that the suspect is required to be informed in this regard by the official concerned. Thus, there is no escape but to hold that the legislature in its wisdom had not deliberately made it obligatory on such officer to inform the accused of his right regarding search before a gazetted officer or nearest Magistrate. It cannot be said to be inadvertent omission as there are many instances where the legislature has specifically provided for such intimation. The provisions of Section 130(1) of the Army Act, 1950, can be safely referred to in this regard. Under that Section, the accused is required to be informed that he has a right to object to the composition of the Presiding Officer or the members of the Court Martial. Similarly, under Section 50(2) of the Code of Criminal Procedure, 1973, it is provided that if a Police Officer arrests a person for bail able offence, without a warrant, then it is obligatory on him to inform such person that he is entitled to be released on b~1 on furnishing requisite sureties. The Full Bench of Orissa High Court in Banka Dass's case had also taken a similar view. The observations of the Division Bench of this Court in Amrit Singh v. State of Haryana, as well as of the Division Bench of the Himachal Pradesh High Court in State of Himachal Pradesh v. Sudershan Kumar, that the officer or police official conducting the personal search of the suspect is bound to inform him of his right to get himself searched in the presence of the gazetted officer or the nearest Magistrate are, therefore, not legally sound. However, in an actual practice, it would be desirable to record the statement of suspect whether he claims search before a gazetted officer or the Magistrate because in every such case of personal search, the accused would assert having claimed such right while it would be almost difficult for the prosecution to prove that he had not done so. In view of the above findings, with utmost respect to the learned Judges of this Court, there is no escape but to held that in Hakam Singh v. Union T9rritory, Chandigarh, Bhajan Singh v. State of Haryana, Amrit Singh v. State of Haryana and State of Himachal Pradesh v. Sudershan Kumar, the learned Judges had not laid-down the correct law qua non- compliance of the provisions contained in Chapter V of the Act other than the one under Section 50 of the Act having resulted in vitiating the trial and conviction. However, their conclusions qua the provisions of Section 50 of the Act are well founded.