The High Court of Delhi in the case of Sumit Rai @ Subodh Rai v. State have recently reiterated the law laid down by the Apex Court in the case of Arif Khan v. State of Uttaranchal in regard with the section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter NDPS Act). The High Court have held that the presence of the Magistrate or a Gazetted Officer is mandatory during the search of accused even if the accused have consented that such search be done by the officer.
Now let us first look at what the section 50 of the act read as:
50. Conditions under which search of persons shall be conducted.(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.(4) No female shall be searched by anyone excepting a female. 1[(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.
A bare reading of section 50(1) suggests that it is a duty of the Investigating officer to apprise the accused of his legal right that his search for the possession of narcotics, be conducted in the presence of the Magistrate or a Gazetted Officer, however, if the accused waives off this legal right or consents (be it oral or written) then in a such a case the Investigating officer can conduct his search for the same.
From the above mentioned dictum reiterated by the Delhi High court and what the reading of section 50 articulates, one could clearly fathom that the both does not stand on the same footing as Section 50 states that if the accused waives of his legal right mentioned in sub-section (1) then in such case the empowered Investigation officer may conduct the search for the Narcotics himself WHEREAS the dictum that has been reiterated by the Delhi High court holds that the even if the accused has waived off his legal right and consented the police official to conduct the search per se it would still be mandatory for the Investigating officer to conduct the search of the accused in the presence of the Magistrate or a Gazetted Officer and not by himself.
To understand as to how this transformation originated one has to refer to the Arif Khan (supra) to unveil the answer.
Arif Khan (supra)
The question arose through this case was whether the search/recovery made by the police officials from the appellant-accused of the alleged contraband (charas) can be held in accordance with the procedure prescribed under section 50 of the NDPS Act? The court whilst relying on the two Constitution Bench Judgments - State of Punjab v. Baldev Singh [(1999) 6 SCC 172] and Vijaysinh Chandubha Jadeja v. State of Gujrat [(2011) 1 SCC 609] - held that section 50 was not followed in its letter and spirit. The court in para 24 gave reason justifying how the recovery/search conducted by the police officials were not in consonance with the law laid down w.r.t. the above stated two judgments in the following words:
24. We do not agree to this finding of the two Courts below as, in our opinion, a search and recovery made from the appellant of the alleged contraband "Charas" does not satisfy the mandatory requirements of Section 50 as held by this Court in the case of Vijaysinh Chandubha Jadeja (supra). This we say for the following reasons:
24.1. First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or Gazetted Officer.
24.2. Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband "Charas" was not made from the appellant in the presence of any Magistrate or Gazetted Officer.
24.3. Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband "Charas" from him, was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband "Charas" as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a Gazetted Officer.
24.4. Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It 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.
At this juncture it is pertinent to discuss the law laid down in State of Punjab v. Baldev Singh (supra) and Vijaysinh Chandubha Jadeja v. State of Gujrat (supra).
Baldev Singh (supra)
The question in this case before the court was whether the provisions of section 50 are mandatory or directory and, if mandatory, to what extent and the consequences of non-compliance with it does not strictly speaking arise in the context in which the protection has been incorporated in section 50 for the benefit of the person intended to be searched. The court however did not express any opinion whether it is directly or mandatory but categorically held that it is imperative and obligatory and casts a duty on the investigating officer to ensure that search of the suspect is conducted in accordance with the compliance of section 50 and failure to apprise the person concerned about his legal right may render the recovery of contraband suspect and the conviction of an accused based on contraband bad and unstainable in law.
Vijaysinh Chandubha Jadeja (supra)
The question that came up before the court was whether section 50 of the NDPS casts a duty on the empowered officers to "inform" the suspect of his right to be searched in the presence of a Magistrate or a gazetted officer, if he desires so or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a gazetted officer can be said to due compliance with the mandate of said section?
Answering the said question the court held that it is imperative on the part of the empowered police officer to apprise the person intended to be searched of his right under section 50 of the NDPS act to be searched before a gazetted officer or a Magistrate. It is not necessary that the information required to be given under section 50 should be in a prescribed form or in writing, but is mandatory that the suspect is made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. The court also stated that the concept of "substantial compliance" is neither borne out from the language of section 50(1) nor is it in consonance with the law laid down in Baldev Singh case (supra). Moreover, failure to "inform" the suspect about the existence of his said right would cause prejudice to him. Failure to comply with section 50 would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Any other interpretation of the provision would make the valuable right conferred on the suspect illusionary and a farce.
The court thereafter in para 32 speaks about how taking the accused or suspect to the Magistrate or the nearest gazetted officer will be more transparent, creditworthy, and much more authentic for the entire proceedings, in the first instance, an endeavour should be produced to produce the suspect before the 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.
Thus the court in Arif Khan (supra) relying on the above two Constitution Bench judgments, the court held that it is mandatory for suspect to be taken to Magistrate or the Gazette Officer even after the suspect has waived of his legal right. However, there has been strong critique that the apex court has erroneously interpreted section 50 and the law laid in above two Constitution Bench judgements.
Why taking the suspect at a first instance to the Magistrate or a Gazetted Officer would be considered as a greater good?
Interestingly the Punjab & Haryana High Court in the case of Kulwinder Kumar @ Bona vs State Of Punjab [CRA-S-2805-SB-2015] whilst dealing with the same issue whereby citing the Vijaysinh Chandubha Jadeja (supra) noted various reasons as to why taking the suspect at a first instance would be considered to the greater good which sort of gave us the reality check regarding the truthfulness of police officials-
20. …….and yet further, though a consent memo is shown to have been signed by the petitioner to the effect that he did not wish to be searched in front of a Magistrate or a gazetted officer, but it having been held in Jadeja that at least an attempt should be made to produce an accused before a Magistrate, the petitioner needs to be granted the benefit of doubt, especially as, with regard to signing of a consent memo, a person who has already been apprehended by police officials, does not have much of a choice to actually refuse to sign such memo, if he is pressurised to do so.
In my opinion, attributing one hundred present truthfulness to the statements made by police officials, though would be an ideal situation and actually should be so, practically it is not possible to attribute such complete honesty to them always, because like all human beings, not all police officials can be honestly accepted to be truthful all the time, even though the intention behind any particular arrest, may not be malafide, which of course at times could also be so.
Repercussion on Justice System & Prosecution's case by not following the Settled Law
Speaking of the settled law laid down in Arif khan (supra), here I cannot omit to discuss as to what will happen if the investigating authority does not conduct the search in the presence of the Magistrate or the Gazetted officer. The failure of such compliance will not only tip the compromise in Administration of Justice System but also puts the court in a handcuffed situation whereby the Lady Justice wearing the blind fold and holding the beam balance will give more weightage to accused who was deprived of its procedural safeguard under section 50 merely on the laxity on the part of the investing agency. The situation is discussed in para 28 of the Baldev Singh (supra) as following :
…….The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in section 50 may result in more acquittals does not appeal to us. If empowered officer fails to comply with the requirements of section 50 and an order or acquittal is recorded on that ground, the prosecution must thank itself for its lapses. Indeed in every case the end result is important but the means to achieve it must remain above the board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under the cloud if the court seen to condone acts of lawlessness conducted by the investigation agency during the search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of Justice. That cannot be permitted.
Déjà Vu of the Arif Khan (supra)
Coming on to the recent case of Sumit Rai @ Subodh Rai (supra) which is nothing but the Déjà vu of the Arif Khan case (supra) where the Delhi High Court dealing with the matter in hand having similar factual matrix, held that it is mandatory that the search of the suspected person conducted under section 50 should be made in the presence of a Magistrate or Gazetted officer even if the person has waived off his legal right. The court once again whereby citing the Constitution Bench judgment of Vijaysinh Chandubha Jadeja (supra) in para 18 stated in following words:
The ratio decidendi of Arif Khan (supra) as contained in para 28 of the said case decision applies, therefore, to the present case on all fours. While it is true that Vijaysinh Chandubha Jadeja (supra) would seem to suggest that, once the accused was offered the option of having his search conducted in the presence of a magistrate or a gazetted officer, he has declined the offer, section 50 stood complied with 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 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. The said enunciation of the law binds me, by the virtue of Article 141 of the constitution of India.
Therefore, in a nutshell the Jurisprudence of Compliance under section 50 (till date) tells us that it is mandatory for the police official or the investigating agency to conduct the search for narcotics of the suspect person in the presence of the Magistrate or a Gazetted Officer even if the suspect person or the accused, upon being informed by the police official about his right to be searched in the presence of the Magistrate or a Gazetted Officer, has relinquished such legal right under Section 50 the NDPS Act.
(The author is a final year BBA LL.B student of GGSIP University)
[ A response to this article may be read here ]