1996 INSC 0938
                                                   State of Punjab

                                                           Vs

                                                      Labh Singh

                       Criminal Appeals No. 730 of 1996 With Nos. 731-33 of 1996

                                      (K. Ramaswamy, G. B. Pattanaik JJ)

                                                      19.07.1996

                                                        ORDER

1. Leave granted.

2. These appeals arise under the Narcotic Drugs and Psychotropic Substances Act, 1985. The
respondents were acquitted on trial on the ground that they were not informed of their valuable right
that under Section 50 of the Act they were entitled to be searched in the presence of a Gazetted
Officer. Violation thereof vitiates the trial as the accused have the statutory right to be searched. The
absence of their information as to the said right is one of the infirmities to the validity of their
prosecution.

3. The question was considered in State of Punjab v. Balbir Singh [(1994) 3 SCC 299 : 1994 SCC
(Cri) 634]. Subsequently, another Bench of this Court in State of Punjab v. Jasbir Singh [(1996) 1
SCC 288 : 1996 SCC (Cri) 1] has pointed out that it would be open to the search officer to inform
the suspect, at the time of search, that he is entitled to be searched in the presence of a Gazetted
Officer and also to take in writing from the accused that he has been so informed and that the
accused has waived that right. Thus it would form part of the record as contemporaneous evidence.
Thereafter, it may not be open to the accused to take the plea of non-compliance of Section 50. It
would be for the court to consider, at the trial, whether the officer who conducted the search, had, as
a fact, informed the accused of that right and whether the accused had waived that right of being
searched only in the presence of a Gazetted Officer. This Court held that :

                  "The matter of appreciation of evidence and the totality of the facts and
                  circumstances have to be considered by the trial court. On the facts in that case, it
                  was held that since the Additional Sessions Judge was not inclined to accept the
                  prosecution case in the absence of anything in writing, this Court confirmed the
                  acquittal."

4. In State of H.P. v. Pirthi Chand [(1996) 2 SCC 37 : 1996 SCC (Cri) 210] this Court further
elaborately considered the effect of the violation of Section 50 and held that any evidence recorded
and recovered in violation of the search and the contraband seized in violation of the mandatory
requirement does not ipso facto invalidate the trial. Section 50 contemplates right to be searched in
the presence of a Gazetted Officer. It depends upon the facts and circumstances in each case. It was
found that the discharge of the accused on that ground was deprecated. In view of the long delay in
the matter, this Court declined to interfere with the discharge recorded by the Additional Sessions
Judge.
5. In view of the settled legal position that the accused has valuable right to be informed of his right
to be searched in the presence of a Gazetted Officer, the search officer invariably would conduct the
search subserving the salutary right given under Section 50. Each case should be considered in the
light of the facts and circumstances in which the contraband was seized, viz., the time when the
search was conducted, the place where it was seized, whether police had prior information of the
contraband being in transport or place of concealment, whether there was proper opportunity for the
police to secure the presence of a Gazetted Officer; whether the delay in search and seizure would
result in the escape of the accused from arrest or contraband would be destroyed or whisked away
and a host of all relevant attendant circumstances. Each case depends upon its own factual scenario
and no exhaustive or mathematical formula of universal application can be laid down. The court has
to consider each case on its own setting. In view of the absence of any writing from the accused to
the effect that the accused was informed of his right and that the same was waived taken by the
officer who conducted the search and seized the contraband and in view of the long delay that has
taken place, we think that these may not be cases warranting interference with the order of acquittal
at this distance of time.

6. The appeals are accordingly, dismissed. The respondents are directed to be set at liberty
forthwith.