The Delhi High Court has referred the issue relating to procedure of recovery of contraband articles from an accused, under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, to a larger bench.
The issue relates to the mandatory presence of Magistrate during search/ recovery.
Section 50(1) of the NDPS Act states that 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.
The matter was referred for consideration before a higher bench after Justice Suresh Kumar Kait noticed two contradictory judgments on the issue, rendered by single-benches of the High Court.
In the case of Innocent Uzoma v. State, Justice Vibhu Bakhru held that presence of Magistrate is contingent upon the desire of the accused. It was held,
"Plainly, there is no requirement to conduct the search in the presence of a Magistrate or Gazetted Officer, if the person proposed to be searched did not so desire, after being informed of his right in this regard. The words "if such person so requires" as used in Section 50(1) of the NDPS Act make it amply clear that the person to be searched would be taken before a Magistrate or a Gazetted Officer, only if he so requires."
In the case of Vaibhav Gupta v. State however, the High Court had held that compliance of Section 50 of the NDPS Act is mandatory and even if the accused has denied the same, still the search has to be conducted in the presence of the magistrate or Gazetted Officer.
The High Court had thereon relied on the verdict of the Supreme Court in Arif Khan @ Agha Khan v. The State of Uttarakhand, whereby it was held,
"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."
In the present case, a bail application preferred by an accused under the NDPS Act, the court was faced with the question whether the procedure for search was duly followed, since the recovery was made in the absence of a Magistrate or a Gazetted Officer.
Noting the anomaly in the law, Justice Kait observed,
"Order dated 14.01.2020 passed by Hon'ble Mr. Justice Vibhu Bakhru in the case of Innocent Uzoma (Supra) and order dated 20.09.2019 passed by this Court in Bail Appln. No.2014/2019 are contradictory to each other and in addition to the above, judgments referred by the counsel for petitioner and learned APP held different opinion on the same issue. Therefore, in the interest of justice, I request the Hon'ble the Chief Justice to constitute a bench to decide the issue raised in the present petition."
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