Section 50 NDPS Act : Understanding The Jurisprudence Of Compliance

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 ...

Section 50 NDPS Act : Understanding The Jurisprudence Of Compliance

Pareesh Virmani

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