This is a response to "Section 50 NDPS Act: Understanding the Jurisprudence of Compliance",
In the aforesaid article, the author has concluded that Section 50 requires a mandatory search of a suspect in the presence of a Magistrate or a Gazetted Officer. The presence of a Magistrate or a Gazetted Officer is an inviolable requirement. The relinquishment or waiver by accused for search in the presence of a Magistrate or a Gazetted Officer is insignificant.
However, the aforesaid understanding is wrong. Arif Khan is per incuriam. Further, in Sumit Rai, the Delhi High Court failed to consider that per incuriam decisions are an exception to stare decisis.
Arif Khan vis-à-vis Section 50 of NDPS Act:
Arif Khan ignores in entirety the language of Section 50. Section 50 is worded in clear terms. It does not give rise to any confusion in as much as the accused has been given a choice to be searched before a Magistrate or a Gazetted Officer or not.
The language used in Section 50 (1) and (2) provides for instances where the suspect conveys his desire not to be searched in the presence of a Magistrate or a Gazetted Officer. Section 50 (1) uses the phrase "if such person requires"; while Section 50 (2) states "If such requisition is made…"
Likewise, Section 50 (5) and (6) provide for instances where search in the presence of a Magistrate or a Gazetted Officer can be dispensed with by an officer by recording reasons and communicating the information to a superior officer. Clearly, the legislature never contemplated mandatory presence of a Magistrate or a Gazetted Officer during search of the suspect for contraband.
In Arif Khan, the accused had waived his right for getting a search conducted in the presence of a Magistrate or a Gazetted Officer. However, in para 24.4, without giving any justification, the Supreme Court, on its own, inferred that since the search was from the body of the suspect "[i]t is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer".
The judgment contains no discussion as to why the investigating agency is still bound to ensure the presence of a Magistrate or a Gazetted Officer, where the accused waives his right for a search in their presence.
Arif Khan vis-à-vis Vijaysinh Chandubha Jadeja:
However, the ratio of Vijaysinh Chandubha Jadeja is misunderstood in entirety in Arif Khan drawing the conclusions in para 24.4.
Vijaysinh Chandubha Jadeja held that a strict compliance of Section 50 is required. The Court did not approve of the concept of "substantial compliance". It was held that the suspect had to be necessarily informed that he has a statutory right under Section 50 to be searched in presence of a Magistrate or a Gazetted Officer. Thus, if the empowered officer gives the accused an option to be searched by a Magistrate or a Gazetted Officer, without specifically informing about statutory right of the accused under Section 50, it would not amount to compliance of Section 50.
Interestingly, Vijaysinh Chandubha Jadeja, also clearly holds that the obligation on part of empowered officer to search the accused in presence of a Magistrate or a Gazetted Officer would arise only if the accused exercises such an option. Reference needs to made of para 20 of the judgment:
"20. The mandate of Section 50 is precise and clear viz. if the person intended to be searched expresses to the authorised officer his desire to be taken to the nearest gazetted officer or the Magistrate, he cannot be searched till the gazetted officer or the Magistrate, as the case may be, directs the authorised officer to do so."
In para 29, it was held that "the suspect may or may not choose to exercise the right provided to him under the said provision."
In none of the judgments subsequent to Vijaysinh Chandubha Jadeja, (with the only exception being Arif Khan) has the Supreme Court held that absence of a gazetted officer or a Magistrate would vitiate the proceedings, even where the accused waives his right. Thus, out of no where – neither based on statutory interpretation nor justified by precedence – Arif Khan lays down an entirely new compliance under Section 50 of the NDPS Act.
Sumit Rai - principle of stare decisis or per incuriam:
In Sumit Rai, the Delhi High Court did notice that Vijaysinh Chandubha Jadeja does not go the extent of laying down that an accused needs to necessarily produced before a Magistrate or a Gazetted Officer, once the right is waived.
Yet, the High Court held that it was bound by the dictum of Arif Khan under Article 141 of the Constitution of India since "Arif Khan (supra), after noticing Vijaysinh Chandubha Jadeja (supra), as well as the law laid down therein, holds, nevertheless, that, even where the accused - as in that case, and as in the present case - declined the offer under Section 50 of the NDPS Act, the raiding team was, nevertheless, required to have the search of the appellant conducted in the presence of a Gazetted Officer or Magistrate" (Para 18)
There cannot be any quarrel with the proposition that any law declared by the Supreme Court under Article 141 is binding upon the High Court. However, the exception to the rule of stare decisis is a decision which is per incuriam.
Thus, in Sumit Rai, the High Court failed to appreciate that Arif Khan is contrary to Vijaysinh Chandubha Jadeja. It would be wrong to say that Arif Khan has developed upon the jurisprudence of Vijaysinh Chandubha Jadeja. Arif Khan is per incuriam – it cannot be held to be a binding precedent to be followed in the subsequent judgments.
Therefore, any submission that Section 50 of the NDPS Act, requires a mandatory search of a suspect in the presence of a Magistrate or a Gazetted Officer, even where the accused accedes to a search being conducted in the absence a Magistrate or a Gazetted Officer is wrong and unsustainable. Once the accused waives his right to be searched in the presence of a gazetted officer or magistrate, after being duly his informed about his statutory rights under Section 50 of the NDPS Act, the trial ought not be vitiated only because such gazetted officer or magistrate was not present at the time of personal search of the accused.
TheAuthor is a Graduate from Oxford and Columbia Universities, and lawyer based in New Delhi. The author is also an Additional Public Prosecutor in the Delhi High Court. However, the comments are entirely personal. Email: [email protected]
(2018) 18 SCC 380
 Crl. A 578 of 2017 decided on 29.07.2019
 [(2011) 1 SCC 609]
 (2011) 1 SCC 694
 (1980) 2 SCC 565
 (2014) 16 SCC 623