NDPS Act: To Search Accused before Gazetted Officer/ Magistrate is Mandatory Requirement

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May 30, 2018

Case name: Arif Khan v. State of Uttarakhand

In a 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[1].

Bench’s Verdict

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[2]. 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.

[1] Chandubha Jadeja vs. State of Gujarat, 2011(1) SCC 609

[2] (1999) 6 SCC 172