The Delhi High Court has acquitted a person convicted under the Narcotic Drugs and Psychotropic Substances Act by holding that conditions of search under Section 50 are mandatory and that they cannot be fulfilled by the plea that accused waived the right to have the search conducted in the presence of a Magistrate or Gazetted Officer.
While setting aside the conviction under Section 18(b) of NDPS Act, the High Court followed the law laid down by the Supreme Court in Arif Khan @ Aga Khan vs State Of Uttarakhand that prosecution cannot take the plea that accused waived his right to have search conducted in presence of Magistrate or Gazetted Officer. In that case, the prosecution took up the plea that the police party had informed the accused of his right under Section 50 and that the accused had consented to have search conducted by police itself. The Supreme Court did not accept the plea and reversed the conviction.
In the instant case also, the search of the accused was not carried out in the presence of Magistrate or Gazetted Officer. The search was carried out by the police raid party itself. According to police, the accused was informed of his right under Section 50 and he consented to have the search conducted by police itself. As per the prosecution case, about 30 kilogram of opium was recovered from his car at the search carried out near Dwarka mor metro station at 10.30 PM on February 6, 20120, following a secret information.
Justice C. Hari Shankar, the single judge of the High Court who dealt with the matter, held that the appellant was entitled to acquittal as per the decisions in Dilip v. State of Madhya Pradesh, (2007) 1 SCC 450, State of Rajasthan v. Parmanand, AIR 2014 SC 1384 and Arif Khan @ Agha Khan v. State of Uttarakhand. The precedents held that non-compliance of Section 50 NDPS Act was fatal,vitiating the entire prosecution. It was also held that consent or lack of consent of the accused was irrelevant regarding compliance of Section 50.
The Court also noted that the prosecution did not have much justification regarding the search procedure except that it had taken place in accordance with the law as it stood at that time and that, therefore, the officials could not be alleged to have acted illegally.
"It is undisputed, in the present case, that the search of the appellant, and his car, were conducted by the raiding party, and not by the Magistrate or a Gazetted Officer. Neither were the appellant and his car produced before any Magistrate or Gazetted Officer. The plea of the respondent, that, as the appellant had been apprised of his right to have himself, and his car, searched by the Magistrate or a Gazetted Officer, and he had himself agreed to be searched by the raiding party, the mandate of Section 50 stood fulfilled, though attractive, cannot sustain, as an identical plea, raised in similar facts, stands negated in Arif Khan (supra)", stated Justice C. Hari Shankar in the acquittal order.
(A critical comment on the SC decision in Arif Khan @ Agha Khan v. State of Uttarakhand may be read here)