NDPS Act | Search By Gazetted Officer Who Is A Member Of Raiding Party Doesn't Satisfy Section 50: Bombay High Court Acquits Kenyan Man

When a person, while being searched, is informed that he will be searched in the presence of a 'Gazetted' Officer, who is also member of the raiding party, then the same would not amount to 'compliance' to the mandatory provision of section 50 of the Narcotics Drugs and Psychotropic Substances (NDPS) Act, held the Goa Bench of the Bombay High Court while acquitting a Kenyan Nation, who was convicted for possessing cocaine and other drugs.

Single-judge Justice Shreeram Shirsat was dealing with an appeal filed by one Joseph Achola Ouma (56), a Kenyan national, who challenged the November 16, 2024 judgment delivered by a Special Court in South Goa at Margao, by which he was sentenced to 10 years in jail along with some fine amounts.

Justice Shirsat in his order pronounced on January 19, noted that Ouma was apprehended by the police on January 29, 2019, after receiving secret information, that a Kenyan national would be visiting near Komarpant Samaj Hall at Colomb to deliver narcotic substances to his clients. The police after apprehending him, informed him about his right to search the raiding party and also apprised him about his right to be searched in presence of a Gazetted Officer and accordingly, he was introduced to one of the officers, who was a member of the raiding party. Accordingly, he was searched and cocaine and some liquid drugs were recovered from his possession. 

In his 55-page judgment, Justice Shirsat explained the importance to comply with section 50 in letter and spirit. 

"There can be no doubt about that police officer being a Gazetted Officer is qualified to witness a search in terms of section 50 of the Act, however such an officer who is part of the investigating team cannot be considered as an independent officer. To achieve the object of section 50 of the Act, which is to check the misuse of power and to eliminate the instances of false implication and planting of contrabands, it is very important that the Gazetted Officer should not be a part of the raiding team or the investigating team but should be an independent person and therefore giving of the third option to the suspect that the suspect has an option of getting searched from the Gazetted officer of the raiding team is something which should not be resorted to, as is beyond the purview of the section," the judge said. 

In the instant case, the judge said, the investigating team utterly failed to follow the mandate of section 50 of the NDPS Act. "It is amply clear that the appellant was given only one option to be searched in presence of a Gazetted Officer. The option to be searched in presence of Magistrate was not given to the accused-appellant. The obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is mandatory and requires strict compliance," the judge pointed out. 

The whole purpose of search before any Gazetted Officer or Magistrate, Justice Shirsat explained, is to obviate any doubt as to the possession of the contraband article under the NDPS Act that the accused is entitled to be searched in presence of a Gazetted Officer or a Magistrate.

The provisions in this regard under section 50 of the NDPS Act are mandatory and language thereof obliges an officer concerned to inform the person to be searched to the effect that he is entitled as of right about the search to be conducted in presence of a Gazetted Officer or a Magistrate.

"The option of right to be searched before a 'Magistrate' is conspicuously absent in the present case and a third option of search before a Gazetted Officer present at the spot is given. This in my opinion is directly in the teeth of section 50 of the NDPS Act," the judge held. 

The object of section 50 is clear as it intends, to ensure that, if so required by the accused, s/he should be taken in front of an independent and a responsible officer, who is a Gazetted Officer, the judge noted.

"Even though the raiding party is accompanied by Gazetted Officer, such a Gazetted Officer would not be an independent or responsible officer contemplated by section 50, as he cannot be considered to be an independent officer. Hence, when the accused is informed that he will be searched in the presence of a Gazetted Officer who is a member of the raiding party, the same will not amount to compliance with the provisions of section 50. While informing the right, only two options of either being searched in presence of a Gazetted Officer or Magistrate must be given, who also must be independent and in no way connected to the raiding party," the judge ruled. 

The Accused must be given a clear and flawless option that he has a right to be searched before a nearest Gazetted Officer or a Magistrate, any third option will be contravening and compromising the validity and sanctity of the provision, the court made it clear.

What has been done in the present case is that in the first place no option of right to be searched before a Magistrate has been given and to further damage or cause dent to the appraisal, the Appellant was also informed in clear terms that the Gazetted Officer - Sub Divisional Police Officer (SDPO), Quepem was also present at the spot and that he has a right to be searched in his presence, thereby polluting his selection of option, the judge observed. 

"A serious note needs to be taken of this issue. It appears that the officers conducting such searches were themselves not aware of the requirements of law and what was expected of them to communicate to the suspect. The trial court has completely misdirected itself in reaching to a conclusion about compliance of section 50 of the Act, even when it was writ large on the face of it that the officer conducting the search has not given the option of “search before a Magistrate” as is mandated by section 50 of the Act," the court opined. 

With these observations, the court acquitted Ouma from all the charges. 

Appearance:

Advocates Shivraj Gaonkar, D Gaonkar, Shithil Prabhu Dessai and Prabhav Sirvoicar appeared for the Appellant.

Additional Public Prosecutor Pravin Faldessai represented the State.

Case Title: Joseph Achola Ouma vs State of Goa (Criminal Appeal 1069 of 2024)

Citation: 2026 LiveLaw (Bom) 46

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