Section 50 NDPS Act: Mis-Understanding The Jurisprudence Of Compliance

In the aforesaid article, the author has concluded that Section 50 requires a mandatory search of a suspect in the presence of a Magistrate or a Gazetted Officer. The presence of a Magistrate or a Gazetted Officer is an inviolable requirement. The relinquishment or waiver by accused for search in the presence of a Magistrate or a Gazetted Officer is insignificant.

^[1](S.C) and Sumit Rai @ SubodhRai vs. State^[2] (H.C.).

However, the aforesaid understanding is wrong. Arif Khan is per incuriam. Further, in Sumit Rai, the Delhi High Court failed to consider that per incuriam decisions are an exception to stare decisis.

Arif Khan vis-à-vis Section 50 of NDPS Act:

Arif Khan ignores in entirety the language of Section 50. Section 50 is worded in clear terms. It does not give rise to any confusion in as much as the accused has been given a choice to be searched before a Magistrate or a Gazetted Officer or not.

The language used in Section 50 (1) and (2) provides for instances where the suspect conveys his desire not to be searched in the presence of a Magistrate or a Gazetted Officer. Section 50 (1) uses the phrase "if such person requires"; while Section 50 (2) states "If such requisition is made…"

Likewise, Section 50 (5) and (6) provide for instances where search in the presence of a Magistrate or a Gazetted Officer can be dispensed with by an officer by recording reasons and communicating the information to a superior officer. Clearly, the legislature never contemplated mandatory presence of a Magistrate or a Gazetted Officer during search of the suspect for contraband.

In Arif Khan, the accused had waived his right for getting a search conducted in the presence of a Magistrate or a Gazetted Officer. However, in para 24.4, without giving any justification, the Supreme Court, on its own, inferred that since the search was from the body of the suspect "[i]t is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer".

The judgment contains no discussion as to why the investigating agency is still bound to ensure the presence of a Magistrate or a Gazetted Officer, where the accused waives his right for a search in their presence.

Arif Khan vis-à-vis Vijaysinh Chandubha Jadeja:

^[3] becomes necessary because in Arif Khan para 24 starts with a definite assertion "search and recovery made from the Appellant … does not satisfy the mandatory requirements of Section 50 as held by this Court in Vijaysinh Chandubha Jadeja."

However, the ratio of Vijaysinh Chandubha Jadeja is misunderstood in entirety in Arif Khan drawing the conclusions in para 24.4.

Vijaysinh Chandubha Jadeja held that a strict compliance of Section 50 is required. The Court did not approve of the concept of "substantial compliance". It was held that the suspect had to be necessarily informed that he has a statutory right under Section 50 to be searched in presence of a Magistrate or a Gazetted Officer. Thus, if the empowered officer gives the accused an option to be searched by a Magistrate or a Gazetted Officer, without specifically informing about statutory right of the accused under Section 50, it would not amount to compliance of Section 50.

Interestingly, Vijaysinh Chandubha Jadeja, also clearly holds that the obligation on part of empowered officer to search the accused in presence of a Magistrate or a Gazetted Officer would arise only if the accused exercises such an option. Reference needs to made of para 20 of the judgment:

"20. The mandate of Section 50 is precise and clear viz. if the person intended to be searched expresses to the authorised officer his desire to be taken to the nearest gazetted officer or the Magistrate, he cannot be searched till the gazetted officer or the Magistrate, as the case may be, directs the authorised officer to do so."

In para 29, it was held that "the suspect may or may not choose to exercise the right provided to him under the said provision."

In none of the judgments subsequent to Vijaysinh Chandubha Jadeja, (with the only exception being Arif Khan) has the Supreme Court held that absence of a gazetted officer or a Magistrate would vitiate the proceedings, even where the accused waives his right. Thus, out of no where – neither based on statutory interpretation nor justified by precedence – Arif Khan lays down an entirely new compliance under Section 50 of the NDPS Act.

Sumit Rai - principle of stare decisis or per incuriam:

In Sumit Rai, the Delhi High Court did notice that Vijaysinh Chandubha Jadeja does not go the extent of laying down that an accused needs to necessarily produced before a Magistrate or a Gazetted Officer, once the right is waived.

Yet, the High Court held that it was bound by the dictum of Arif Khan under Article 141 of the Constitution of India since "Arif Khan (supra), after noticing Vijaysinh Chandubha Jadeja (supra), as well as the law laid down therein, holds, nevertheless, that, even where the accused - as in that case, and as in the present case - declined the offer under Section 50 of the NDPS Act, the raiding team was, nevertheless, required to have the search of the appellant conducted in the presence of a Gazetted Officer or Magistrate" (Para 18)

There cannot be any quarrel with the proposition that any law declared by the Supreme Court under Article 141 is binding upon the High Court. However, the exception to the rule of stare decisis is a decision which is per incuriam.

^[4], the Supreme Court reiterated that Benches of lesser strength are bound by the judgments of the Constitution Bench and any Bench of smaller strength taking contrary view is per incuriam. The Supreme Court refused to be bound by then recent judgments which were contrary to the Constitution Bench judgment in Gurbaksh Singh Sibbia Etc vs. State Of Punjab^[5], which comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 CrPC.

^[6], it was held that a decision can be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger Bench. The Court held that "[i]t is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam."

Thus, in Sumit Rai, the High Court failed to appreciate that Arif Khan is contrary to Vijaysinh Chandubha Jadeja. It would be wrong to say that Arif Khan has developed upon the jurisprudence of Vijaysinh Chandubha Jadeja. Arif Khan is per incuriam – it cannot be held to be a binding precedent to be followed in the subsequent judgments.

Therefore, any submission that Section 50 of the NDPS Act, requires a mandatory search of a suspect in the presence of a Magistrate or a Gazetted Officer, even where the accused accedes to a search being conducted in the absence a Magistrate or a Gazetted Officer is wrong and unsustainable. Once the accused waives his right to be searched in the presence of a gazetted officer or magistrate, after being duly his informed about his statutory rights under Section 50 of the NDPS Act, the trial ought not be vitiated only because such gazetted officer or magistrate was not present at the time of personal search of the accused.