S.50 NDPS Act | Oral Refusal To Be Searched Before Magistrate Or Gazetted Officer Insufficient: Bombay High Court Grants Bail

The Bombay High Court has granted bail to an accused booked under the Narcotic Drugs and Psychotropic Substances Act, 1985, holding that an oral waiver of the right available under Section 50 of the Act is not sufficient. The Court observed that where an accused elects not to exercise the right of being searched before a Gazetted Officer or a Magistrate, such waiver must be reduced into writing and duly signed by the accused.

Justice Shyam C. Chandak was hearing a bail application filed by an accused arrested in connection with an offence under Sections 8(c), 22(b), and 22(c) of the NDPS Act. According to the prosecution, while the police were patrolling, they found the applicant behaving suspiciously. After serving him with a notice under Section 50 of the NDPS Act, the police conducted his personal search in the presence of panch witnesses and allegedly recovered 100 grams of Mephedrone from his possession. Following completion of the investigation, a charge sheet was filed, and the trial court rejected his application for bail.

The applicant contended that there was non-compliance with Section 50 of the NDPS Act as his alleged waiver of the right to be searched before a Gazetted Officer or Magistrate had not been recorded in writing. The State opposed the application, contending that the applicant had been served with a written notice under Section 50 and had orally stated that it was not necessary to be searched before a Gazetted Officer or Magistrate.

The Court noted that although the written notice under Section 50 informed the applicant of his right to be searched before a Gazetted Officer or Magistrate, the alleged waiver was recorded only in the panchnama as an oral statement that such arrangement was "not necessary". It found that the waiver was neither recorded on the copy of the notice nor separately reduced into writing bearing the applicant's signature.

“… the Applicant was informed that, “He has right of being searched in the presence of a Magistrate or a Gazetted Officer. If he so desire, then we can make such an arrangement”. However, as recorded in the Panchnama, the Applicant orally replied that “It is not necessary”. Yet, the said waiver by the Applicant is neither recorded in the copy of the notice nor separately with signature of the Applicant thereunder,” the Court observed.

The Court held that the absence of a written waiver supported the applicant's contention that the search had not been conducted in the manner required by law. Taking note of the applicant's continued incarceration for more than three and a half years, the fact that no prosecution witness had yet been examined, and that he was already on bail in the earlier cases, the Court held that the applicant had made out a case for the grant of bail.

Accordingly, the Court allowed the bail application and directed the release of the applicant on bail, subject to conditions.

Case Title: Shakir Jamil Ahmed Shaikh v. State of Maharashtra [Bail Application No. 4911 of 2024].

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