Giving Accused Option To Be Searched Before Police Officer Violates Section 50 NDPS Act : Supreme Court

The Supreme Court on Monday (March 16) upheld the acquittal in a case under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, after noting that the accused, who was allegedly found in possession of 'Charas', was also given a legally impermissible option to be searched in presence of the police officer, which the court held to be contrary to Section 50 of the NDPS Act, as the personal search of an accused can be conducted either in presence of a magistrate or gazette officer. A bench of Justices Pankaj Mithal and Prasanna B. Varale dismissed the State of Himachal Pradesh's appeal, upholding the High Court's decision to acquit the respondent-accused of the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). “The police has given option to the accused either to be personally searched before the Magistrate or the Gazetted Police Officer. The accused was also given option whether he wanted to be searched by the I.O. in the presence of witnesses mentioned in Ext. PW-1/A. According to Section 50 of the ND & PS Act, the accused has to be apprised of his legal right to be searched either before the Magistrate or the Gazetted Officer. There is no third option to be searched before the Police Officer. Thus, the consent obtained from the accused was not in conformity with Section 50 of the Act. It has vitiated the entire trial.”, the bench endorsed the High Court's observation. The Case According to the prosecution, a police party was returning from a checkpoint duty near Dhangu Dhank in Himachal Pradesh when they encountered the accused carrying a backpack. On noticing the police, the accused allegedly attempted to flee. The police apprehended him and searched the bag, recovering a plastic packet containing charas in the form of balls and sticks weighing about 11 kg and 50 grams. The contraband was sealed and later sent for forensic examination. Based on the recovery, the accused was prosecuted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The trial court convicted him and sentenced him to 10 years' rigorous imprisonment along with a fine of ₹1 lakh. However, the conviction was overturned by the High Court, which held that the prosecution had failed to establish compliance with the mandatory safeguards under Section 50 of the NDPS Act, after noting that the accused was also given the legally impermissible option of personal search in front of a police officer. Aggrieved, the State appealed to the Supreme Court. Decision Affirming the High Court's decision, the judgment authored by Justice Varale held that the procedure adopted by the police violated Section 50 of the NDPS Act. The law requires that an accused be informed only of his right to be searched before a Magistrate or a Gazetted Officer, observed the Court, stressing that offering a third option of being searched by the police officer himself misrepresents the legal right available to the accused and vitiates the entire search process. Reference was drawn from the case of Suresh and others v. State of Madhya Pradesh, (2013) 1 SCC 550, to hold that an accused must be clearly informed of the right to choose between a Magistrate or a Gazetted Officer for the search. “in a case where the accused were merely asked whether they would offer their personal search to police officer concerned or to gazetted officer and the appellants gave their consent for their personal search by police officer concerned, it will amount to non-compliance of Section 50(1) of the ND & PS Act.”, the court held in Suresh and others versus State of Madhya Pradesh (supra). The bench noted that presenting an impermissible alternative undermines the statutory protection and renders the consent of the accused legally invalid. In light of the aforesaid, the Court dismissed the appeal and upheld the acquittal.HeadnoteNarcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 – Conditions under which search of persons shall be conducted – Non-compliance with mandatory requirements – Provision of "Third Option" for search – Noted that the High Court's acquittal of the accused was upheld where the Investigating Officer, while apprising the accused of his rights, provided a "third option" to be searched by the Police Officer instead of only a Magistrate or a Gazetted Officer - Such an option is contrary to the statutory mandate of Section 50, which only allows for search before a Gazetted Officer or a Magistrate – Held that although the contraband (11 kg 50 grams of Charas) was recovered from a bag carried by the accused, Section 50 was attracted because a personal search was also conducted alongside the search of the bag – noted that the prosecution's case was further weakened by the testimony of PW-8 (shopkeeper), who denied providing an electronic weighing scale as claimed by the police, stating he only possessed traditional scales - This discrepancy rendered the prosecution's version of...

Giving Accused Option To Be Searched Before Police Officer Violates Section 50 NDPS Act : Supreme Court

Yash Mittal

The Court held that the violation of Section 50 NDPS Act vitiated the trial in this case.

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Yash Mittal

Giving Accused Option To Be Searched Before Police Officer Violates Section 50 NDPS Act : Supreme Court

Yash Mittal

The Court held that the violation of Section 50 NDPS Act vitiated the trial in this case.

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INR 1099+GST

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Yash Mittal

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