July 25, 2018
Case name: Joginder Singh v. The State of Himachal Pradesh
In this recent case, the High Court of Himachal Pradesh has elucidated on the object behind enactment of Section 50 of the NDPS Act. The provision enumerates the circumstances under which search of a person shall be conducted. It states that when any officer is about to search any person under the provisions of Section 42 or Section 43, he shall, if such person as requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
According to the facts of the present case, the Appellant was convicted by the Lower Court for the commission of the offence punishable under Section 20 of NDPS Act (the provision enumerates punishment for contravention in relation to cannabis plant and cannabis).
The evidence and material available on record showed that the accused was nabbed by the Police Officials, initially his personal search was conducted followed by search of his bag.
In view of the facts and circumstances of the case and the prevalent law, the High Court of Himachal Pradesh acquitted the accused on the ground that the mandatory provision under Section 50 of the NDPS Act was not followed by the concerned Officials.
While arriving at its decision, the High Court made reference to Supreme Court’s judgment in the case of State of Rajasthan vs. Parmanand & another, wherein the Court held that if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, then Section 50 of the NDPS Act will have application.
While elaborating on the Object of Section 50 of the NDPS Act, the High Court made the following essential observations in the case:
- That the real aim and purpose of Section 50 of the NDPS Act is to inform the person, who is to be searched, of his vital right to be searched by a magistrate or by a gazetted officer. Compliance of Section 50 cannot at all be given go by, as crimes under the NDPS Act provide stiffer punishments and, therefore, the procedure provided under the Act has to be followed meticulously.
- That Section 50 of the NDPS Act works as safeguard for the accused against false involvement. Therefore, it is incumbent upon the police to clearly communicate the accused of his valuable right to be searched by a magistrate or by the gazetted officer and in a case where this vital right of the accused is diluted, the very purpose of creating this right in the NDPS Act is defeated.
- The objective of this Section is to make aware the accused of his right, and the whole purpose behind creating this right is effaced if the accused is not able to exercise the same for want of knowledge about its existence. The right ingrained under Section 50 of the Act is of utmost importance to the accused and failure of the police to communicate the same to the accused, entails fatal consequences on the roots of the prosecution case.
The entire case can be accessed here.
 (2014) 5 SCC 345