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822 EXCISE LAW TIMES [ Vol. 372

tion 100 or 101 of the said Act. Such protection is with the view to ensure that
such search is taken with good cause and to lend credence to the evidence de-
rived from such search. The expression “if such person so requires” in Section
102 necessarily implies that to enable him to exercise his legal rights under Sec-
tion 102, he should be made aware of such rights. It is the obligation of the officer
of customs to apprise the suspect of the rights available to him under Section 102,
viz. to be taken to the nearest Gazetted Officer of Customs or magistrate. This is a
necessary sequence to be complied with for enabling the suspect exercise his
rights; and the failure to do so will render such valuable rights conferred to the
suspect under Section 102 illusory and a mere farce. The choice, whether to be
taken to the nearest Gazetted Officer of Customs or a magistrate, lies with the
suspect and in the event such choice is made known by him to the officer of cus-
toms, he shall be searched only in that manner. It is not up to the officer of cus-
toms to make this choice or elect before whom the accused is to be taken. There-
fore, even assuming that the officer taking the search is a Gazetted Officer, it is
still imperative for him to comply with his obligation to apprise the suspect of
the legal rights available to him under Section 102. Also because, upon exercise
by the suspect of his right to be taken before a Gazetted Officer or magistrate, the
provisions of Section 102(3) come into play, which, in my opinion, is a check on
the misuse of power and also provides an additional measure of protection to the
suspect. Section 102(3) provides that once the suspect is taken either before the
Gazetted Officer or the magistrate, whichever the case may be, such Gazetted
Officer or magistrate is empowered to forthwith discharge the person if he sees
no reasonable ground for search, or otherwise direct that the search be made. In
my opinion, the suspect will be denied of this additional degree of protec-
tion/opportunity if a Gazetted Officer himself takes search and does not apprise
the suspect of his rights under Section 102 thereby the procedural requirements
of Section 102(3) not being complied with.
12. The Hon’ble Supreme Court has, in Vijaysinh Chandubha Jadeja v.
State of Gujarat [(2011) 1 SCC 609 - Para 32], observed that in order to impart au-
thenticity, transparency and creditworthiness to the entire proceedings, in the
first instance, an endeavour should be to produce the suspect before the nearest
Magistrate, who enjoys more confidence of the common man compared to any
other officer. It would not only add legitimacy to the search proceedings, it may
verily strengthen the prosecution as well.
It was submitted before constitutional Bench of Hon’ble Supreme Court
as under :
“14. Adopting the same line of arguments, Mr. P.P. Malhotra, the learned
Additional Solicitor General, appearing on behalf of the Government of
NCT of Delhi maintained that it is clear from language of Sections 41(2), 42
and 43 of the NDPS Act that the legislature has dealt with gazetted officers
differently, reposing higher degree of trust in them and, therefore, if a
search of a person is conducted by a gazetted officer, he would not be re-
quired to comply with the rigours of Section 50(1) of the Act. It was argued
that the view expressed by this Court in Ahmed (supra), is incorrect and,
therefore, deserves to be reversed. “
But the Hon’ble Supreme Court has considered who will be a more appropriate
authority between a Gazetted Officer and a Magistrate. In paragraph 32 Supreme
Court stated as under :

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