Delhi High Court has held that the requirement to conduct search and seizure before a Gazetted Officer/Magistrate under section 50 of NDPS is mandatory only when the accused requires such procedure to be carried out.
The Single Bench of Justice Vibhu Bhakru has noted that if Section 50(1) of NDPS Act is read to mean that it is necessary in all cases that a search be conducted before a Magistrate or a Gazetted Officer, there would be no purpose in informing the suspect of his right to be searched before such officers.
In the present appeal, the legal question before the judge was whether the appellant's search conducted by the police officials was not compliant with the provisions of Section 50 of the NDPS Act, as it was not conducted in the presence of Gazetted Officer/Magistrate.
Appellant's counsel, Mr JS Kushwaha, had made three primary submissions before the court:
- First, that the public witnesses had not been joined in the search and seizure proceedings, despite the raiding party having sufficient time to do so.
- Second, there were inconsistencies in the testimonies of various witnesses.
- Third, he submitted that mandatory provisions of Section 50 of the NDPS Act were not complied with, as the notice allegedly served did not state that a search before a Gazetted Officer or a Magistrate shall be arranged.
While the court rejected the appellant's contention regarding inconsistent testimonies, it did accord some weight to the argument of no public witnesses being joined in search and seizure. It was noted:
'The testimony that certain passersby at a red light and at the spot were asked to join the proceedings does reflect the casual approach of the concerned officials. The raiding team had sufficient time to ensure that independent witnesses are joined in the proceedings. The appellant was apprehended
from a crowded spot and there were a number of establishments nearby and, thus, there would be no dearth of public witnesses.'
However, the court was unable to accept that the testimonies of the police witnesses must be disregarded on account of not including of public witnesses in the proceedings.
With regards to the third submission, Mr Kushwaha had argued that the notice which was issued to the accused was detective. The said notice reads as following:
'"…. Before conducting your search it is your legal right that your search could be taken before a Magistrate or a Gazetted officer for which arrangement can be made….".
He submitted that sub-section (1) of Section 50 of the NDPS Act used the word 'shall' and it was expressly indicated that the officer authorized under Section 42 of the Act 'shall' take the person to thenearest Gazetted Officer or to the nearest Magistrate. Hence, the notice shall be deemed defective, as it used the word 'can' instead of 'shall'.
The court rejected this argument by observing that the use of the word 'can' in the statement 'before conducting a search it is your legal right that a search can be conducted for which arrangement 'can be made' instead of the word 'shall'' is irrelevant, because the appellant was duly communicated that he had a legal right to be searched before a Magistrate or a Gazetted Officer.
The next argument made by Mr Kushwaha regarding non-compliance with section 50 was that notwithstanding that the appellant had not opted to be searched before a Magistrate or a Gazetted
Officer, it was, nonetheless, imperative that the search be conducted before a Magistrate or a Gazetted Officer and failure in this regard rendered the appellant liable to be acquitted of the offence.
Denying that argument, the court opined the following:
'Whilst it is clear that the authorized officer is required to take the person concerned to the nearest Magistrate/Gazetted Officer if the person so requires; it is difficult to interpret Section 50(1) of the NDPS Act to read that it is mandatory that in all cases, search must be conducted before a Gazetted Officer or a Magistrate'.
It was further observed that the entire object of informing the suspect, who is proposed to be searched, about his/her right is to enable him to exercise this right – the right to be searched before a Magistrate or a Gazette Officer. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said proviso.
Therefore, it is held that 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.
Further, the words "such requisition", as mentioned in the opening sentence of Sub-section (2) of Section 50 of the NDPS Act, obviously refers to the person proposed to be searched electing to exercise his right to be searched before a Gazetted Officer / Magistrate.