Intent Of S.50 NDPS Act Is To Inform Suspect Of Right To Be Taken To Officer Who Isn't Part Of Search Party : Supreme Court

The Supreme Court has observed that the intent behind Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is to inform a suspect who is about to be searched of the right to be taken to a Gazetted Officer who is not part of the raid team.

"It is obvious that the intent behind the provision is to ensure that the person about to be searched is made aware of the option to be taken before a third person other than the one who is conducting the search," the Court observed.

"Use of the expression “nearest” refers to the convenience as the suspect is to be searched. Delay should be avoided, as is reflected from the use of the word “unnecessary delay” and the exception carved in sub-section (5) to Section 50 of the NDPS Act. Nothing more is articulated and meant by the words used, or the intent behind the provision, " the Court added.

A bench comprising CJI Sanjiv Khanna and Justice Sanjay Kumar was hearing Govt. of NCT Delhi's challenge to Delhi High Court order which granted bail to a person allegedly accused of purchasing and possessing 500 grams of Heroin. An FIR u/s 21 and 29 of the NDPS Act was registered against the accused. 

The Delhi High Court bench of Justice Jagmeet Singh had granted bail to the respondent on two main aspects: (1) the notice served to the accused under S.50 NDPS was ill-informed and (2) the search on the accused was done not by an independent officer but by the ACP who was part of the raiding team. 

Additional Solicitor General (ASG) Aishwarya Bhati appearing for the State contended that the High Court's order is now being used as reference to grant bail in other NDPS matters. 

Senior Advocate Mukta Gupta appearing for the accused reiterated the reasoning of the Delhi High Court, and stressed that S.50 notice was violated in terms of the 'plain and natural' reading of the words. 

S. 50(1) of the NDPS Act states that "When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate."  

However, the High Court noted that the notice served upon the accused stated, " You have the legal right to get yourself searched in the presence of any Gazetted Officer or Magistrate." 

However, the CJI verbally observed that in the present context, a plain and natural interpretation of the term 'nearest' u/s 50 meant same as 'any'

"It makes no difference at all, if 'any' and 'nearest' are identical, it makes no difference," CJI said.

Considering the aspect of how the ACP who was part of the raiding team, and the search was also conducted in his presence as the 'Gazetted Officer' under S.50, the bench agreed to clarify the provision's interpretation to that extent. 

"If they (notice under S.50)are saying -any Gazetted Officer, they are meaning not a Gazetted Officer who is a member of the team- that portion we will clarify. But the reasoning of the High Court is wrong," the CJI expressed verbally. 

The Bench while allowing the appeal for cancellation by the State clarified that it is not expressing anything on the merits of the case. The accused was also granted liberty to file bail application in case of changed circumstances. 

In the order, the bench observed :

"We are unable to appreciate the reasoning given by the High Court in the impugned judgment, which states that use of the word 'any' does not satisfy the mandate of the 'nearest' Gazetted Officer and, hence, the respondent, Mohd. Jabir, is entitled to bail. The option given to the respondent, Mohd. Jabir, about to be searched, with reference to a Gazetted Officer or a Magistrate, does not refer to the authorized person in the raiding team itself. It is pertinent to mention that the respondent, Mohd. Jabir, did not exercise the option."

Reasoning Of The High Court

The High Court opined that the intent of S. 50(1) was to ensure independence and impartiality when carrying out the search of the accused.

"In my opinion the use of the word "nearest" by the legislature is intentional and has been used to ensure neutrality and independence at the time of search." 

However, in the present scenario the intent of the provision is defeated considering that the ACP who was member of the raiding team and upon whose direction the entire investigation was initiated. 

The High Court therefore granted bail to the accused, while observing:  In my opinion, there is illegality in notice served U/s 50 NDPS Act dated 27.10.2020. The section 50 categorically mandates that where the accused requires a search, the search has to be done by nearest gazetted officer/nearest magistrate

 However, the section 50 notice served upon the applicant and the co-accused informs incorrectly that they can be searched by any gazetted information/magistrate. This, in my opinion is where the violation of section 50 lies.  

Case details : STATE OF NCT OF DELHI vs. MOHD. JABIR| Crl.A. No. 004931 / 2024

Citation : 2024 LiveLaw (SC) 956

Click here to read the order