November 16, 2018
Case name: Dharambir v. State
In the case, the Appellant was convicted for offence committed the offence punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), as he was found to have been in possession of opium.
According to the facts of the case, 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. Thus, the Appellant challenged his conviction for non-compliance of mandatory requirement under Section 50 of the NDPS Act.
The statutory provision under Section 50 of NDPS Act enumerates the conditions under which search of persons shall be conducted.
The Respondent in the case took the plea that search had been conducted, by the raiding team, only after obtaining consent the Appellant.
Delhi High Court’s Verdict
The High Court of Delhi in view if the prevailing law and facts and circumstances of the case acquitted the Appellant and observed as under:
The High Court to arrive at its decision heavily relied on Supreme Court’s recent judgment in the case of Arif Khan @ Agha Khan v. State of Uttarakhand, wherein the Apex Court ruled that it is imperative on the part of the Police Officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a Gazetted officer or a Magistrate. It was held that it is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of NDPS Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate.
The entire case can be accessed here.
 2018 SCC OnLine SC 459.