November 05, 2018
The Narcotic Drugs and Pshychotropic Substances Act was formulated by the Legislature in the year 1985 and is an essential legislation which seeks to consolidate and amend the law relating to narcotic drugs and particularly to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances in the territory of India.
Recently, the Judiciary has passed verdicts pertaining to the NDPS Act which further aid in streamlining the related law.
NDPS Act: To Search Accused before Gazetted Officer/ Magistrate is Mandatory Requirement
Case name: Arif Khan v. State of Uttarakhand
In this recent case, the Supreme Court reiterated the settled position of law that Section 50 of NDPS Act (Narcotic Drugs and Psychotropic Substances Act, 1985) is a mandatory provision. Here it would be relevant to mention that Section 50 of NDPS Act enumerates the conditions under which search of person shall be conducted.
In the case the appellant-accused was convicted for the offence punishable under Section 20 of the NDPS Act. In appeal, the accused while assailing the legality and correctness of conviction contended that the prosecution had failed to ensure mandatory compliance of Section 50 of NDPS Act inasmuch as the alleged recovery/search of the contraband (Charas) made by the raiding police party from the appellant’s body was not done in accordance with the procedure prescribed under Section 50 of NDPS Act, which is a mandatory provision.
In the case, the Two-Judge Bench of the Supreme Court allowed the appeal and made the following observations:
That the true scope and object of Section 50 of NDPS Act, what are the duties, obligation and the powers conferred on the authorities under Section 50 of NDPS Act and whether the compliance of requirements of Section 50 are mandatory or directory, remains no more res integra and are now settled by the two decisions of the Constitution Bench of the Supreme Court in the case of State of Punjab vs. Baldev Singh. In this case, it was held that the requirements of Section 50 of NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with.
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.
In view of the facts of the present case, the Apex Court was of the view that as there was non-compliance with the mandatory procedure prescribed under Section 50 of NDPS Act , the appellant was entitled to claim its benefit to seek his acquittal.
The entire case can be accessed here.
Court Acquits Accused as Official didn’t Comply with Section 50 of NDPS Act
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 Actis 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 Actworks 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.
 Chandubha Jadeja vs. State of Gujarat, 2011(1) SCC 609
 (1999) 6 SCC 172
 (2014) 5 SCC 34