The Delhi High Court on Monday reiterated the settled position of law that search of an accused under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) has to be conducted, mandatorily in the presence of a Magistrate or Gazetted Officer even if the accused refuses the offer in this regard.
The Appellant, aggrieved by conviction order of the trial court passed for possession of 100 kg cannabis, pursued the present appeal on grounds of unfair search procedure. The Respondent-prosecution contended that the Appellant was informed that he had a right to have his search carried out in the presence of a Magistrate under Section 50 of the NDPS Act. The Appellant himself declined the offer, whereupon the search of the appellant was carried out by the Investigating Officer and thus such a plea was unfounded, the state submitted.
The Respondent relied on the Supreme Court judgment in Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609, wherein it was held that if the accused gave his consent in writing to be searched by the police officials despite telling him about his legal right available under Section 50, the requirements of Section 50 stood fully complied with.
Reserving his silence on the aforesaid ruling, Justice C. Hari Shankar held that the search pursuant to which narcotics were recovered was to be done mandatorily in the presence of a magistrate. This requirement could not be done away with even if the accused refused the offer. He relied on the Supreme Court's verdict in Arif Khan v. State of Uttarakhand, AIR 2018 SC 2123, which had a similar factual matrix, to substantiate that "failure to comply with Section 50 of the NDPS Act is fatal to the case of the prosecution, which stands vitiated, in its entirety".
Arguments for the Appellant were advanced by Advocate S.B. Dandapani and for the Respondent by APP Meenakshi Chauhan.
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