S. 50 NDPS Act Applies Only To Personal Search, Not When Recovery Is From Articles Carried By Accused : Supreme Court

The Supreme Court on Tuesday (July 21) observed that the protection under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, to be searched in the presence of a Gazetted Officer or a Magistrate, would be available during the personal search of an accused and doesn't extend to searches when the accused was carrying a bag, container, or any other object. “The protection under Section 50 is confined to cases where the recovery is sought to be effected through the personal search of the accused. It has no application where the search is of an article, such as a bag, container, suitcase or any other object, which the accused may be carrying.”, observed a bench of Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh, while upholding the conviction of a man who was carrying a narcotic substance (smack) concealed in a water bottle. The Appellant challenged his conviction relying on Section 50 of the NDPS Act, contending that failure to hold a search in the presence of a magistrate or a gazetted officer was an illegality warranting acquittal. Also, he complained about the non-compliance of Section 52A, arguing that failure to draw the collected sample in the presence of a magistrate proved fatal to the prosecution's case. Rejecting his arguments, the judgment authored by Justice Karol said that since the substance was recovered from the water bottle which the Appellant was carrying, Section 50 had no application. “In the instant case, given that the contraband was recovered from a water bottle which the appellant was carrying and not from his person, Section 50 of the NDPS Act has no application. Even otherwise, the evidence on record clearly shows that the appellant was apprised of his right to be searched before a Magistrate or a Gazetted Officer.”, the Court noted. Further, rejecting his argument about the non-compliance of Section 52A of NDPS Act i.e., drawing of a sample in an absence of a magistrate, the Court said that the same was a procedural irregularity and cannot be a ground for acquittal unless shown that the accused was prejudiced by the non-compliance with Section 52A of the NDPS Act. “…the samples were not drawn in the presence of a Magistrate is merely a procedural irregularity and cannot be ground for acquittal.”, the Court said. “It is well settled that mere delayed compliance or non-compliance of the procedure envisaged under Section 52A does not, by itself, entitle the accused to claim acquittal in the trial, when sufficient material is collected by the Investigating Officer to establish that the search and seizure of the contraband was conducted in accordance with the mandatory provisions of the NDPS Act. Where non-compliance of Section 52A of the NDPS Act is alleged, the prosecution must prove either substantial compliance with the mandate of Section 52A of the NDPS Act or satisfy the Court that such non-compliance has not affected its case against the accused.”, the Court observed. NDPS Act Doesn't Prohibit On-Spot Drawing Of Sample “It is undisputed that the samples were drawn by PW-9 himself at the time of seizure and not in the presence of a Magistrate. However, the appellant has failed to demonstrate that such non-compliance has caused him any serious prejudice. It is pertinent to note that the NDPS Act, as it then stood, did not prohibit drawing of samples at the spot of seizure. As noticed above, the requirement under Section 52A is procedural in nature. The documents like panchnama, seizure memo, arrest memo, etc., prepared by the Investigating Officer on the spot or during the course of investigation constitute primary evidence, with regard to search and seizure of the contraband, which cannot be overlooked merely because of some lapse or non-compliance is found with Section 52A of the Act.”, the Court said, relying on NCB v. Kashif, 2024 LiveLaw (SC) 1033. While upholding the conviction, the Court noted that Section 21 prescribed a minimum sentence of 10 years and modified his sentence from 14 years to a minimum sentence of 10 years. The appeal was partly allowed.HeadnoteNarcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 – Applicability of Personal Search Conditions to Objects/Articles Carried - The Supreme Court reiterated that the sacrosanct right of an accused to be searched before a Gazetted Officer or a Magistrate under Section 50 of the NDPS Act is confined strictly to cases where the recovery is sought to be effected from the personal search of the accused - It has no application whatsoever when the contraband is recovered from an article or object being carried by the accused, such as a bag, container, suitcase, or water bottle. [Relied on State of H.P. v. Pawan Kumar (2005) 4 SCC 350; Ranjan Kumar Chadha v. State of H.P. 2023 SCC OnLine SC 1262; State of Punjab v. Baldev Singh (1999) 6 SCC 172; Paras 12 - 13]Section 52A – Drawing of Samples at the Spot of Seizure vs. Presence of Magistrate – The Supreme Court...

S. 50 NDPS Act Applies Only To Personal Search, Not When Recovery Is From Articles Carried By Accused : Supreme Court

Yash Mittal

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Yash Mittal

S. 50 NDPS Act Applies Only To Personal Search, Not When Recovery Is From Articles Carried By Accused : Supreme Court

Yash Mittal

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Yash Mittal

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