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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