Bombay High Court: Acquitting a South African woman of the charges of possessing narcotic substances, a division bench comprising of VK Tahilramani and VL Achilya, JJ observed that Air Intelligence Unit (AIU) had failed to follow the proper procedure of informing the suspect that he/she had the ‘right’ to be searched before a gazetted officer or magistrate. In the present case, the suspect was searched at the airport and a bag of heroin was found from a false bottom in her belongings. Thereafter, she was sentenced to life imprisonment by a special court. The Counsel for the appellant argued that the accused person has a right under Section 50 of the NDPS Act to be searched only before a gazetted officer or a magistrate. The officers have to inform the accused of this right and then carry out the search. Accepting this, the Court noted that informing an accused of his or her right is ‘not an empty formality’. The Court stated that such a requirement of law prescribed under Section 50 cannot be dealt with lightly by the courts dealing with the trial of such offences. It is well settled that the offence committed under NDPS Act is a grave one, therefore procedural safeguards provided therein have to be strictly complied with. [Thulile Goodness Dhalmini vs. Union of India, Criminal Appeal No. 46 of 2013, decided on April 8, 2014]
In OP(Crl.).No.348 OF 2019, T.K.SAJEEVAN vs FRANCIS T.CHACKO, the appeal was filed against the order of the lower court to deposit 25% of the fine before filling of appeal. The appellant argued that the deposit introduced through the Section 148 of the NI Act after amendment was directory in nature as it used the term 'may' while mentioning the issue of deposit. The Kerala High Court however disagreeing held that in view of the object of the Legislature while incorporating Section 148 into N.I. Act, the word 'may' will have to be read as 'shall'. The imposition of payment contemplated under Section 148 N.I. Act cannot be restricted to some prosecutions and evaded in other prosecutions. Since the amount directed to be deposited being compensation, undoubtedly, it is liable to be ordered to be deposited irrespective of the nature of the prosecution. Therefore, the word 'may' can only be taken to have the colour and meaning of 'shall' and there
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