Safeguard U/S 50 NDPS Act Pertaining To Manner Of Search Crucial In Protecting Individual From Coercive Police Action: Rajasthan High Court
While granting bail to a man booked under the Narcotic Drugs and Psychotropic Substances Act for non compliance of Section 50 by the police while conducting search, the Rajasthan High Court said that the safeguard provided under the section is significant in protecting a person from coercive police action. For context, Section 50 of the Act pertains to the conditions under which search of...
While granting bail to a man booked under the Narcotic Drugs and Psychotropic Substances Act for non compliance of Section 50 by the police while conducting search, the Rajasthan High Court said that the safeguard provided under the section is significant in protecting a person from coercive police action.
For context, Section 50 of the Act pertains to the conditions under which search of persons is to be conducted.
Referring to the provision a single judge bench of Justice Rajendra Prakash Soni in its order observed, "Section 50 ensures that the accused is made aware of his rights regarding the manner of the search. According to this section, before conducting a personal search, the accused must be informed of his right to opt for the search to be conducted either in the presence of a Magistrate or a Gazetted officer. This safeguard is crucial to protect the rights of individuals and prevent arbitrary or coercive actions by the police".
The order was passed in a bail plea moved by a man who was booked under Section 18 (Punishment for contravention in relation to opium poppy and opium) of the NDPS Act. The prosecution had alleged that during a police blockade, a public transport bus was checked and the man who was travelling on the bus, was found to be in possession of 4.5 Kgs of Opium.
The man argued that there the Section 50 of the NDPS Act had not been followed adding that he was innocent and a false case had been foisted against him.
The state while opposing the bail plea said that 4.530 Kgs. of contraband opium recovered from the man falls within the ambit of commercial quantity and the bar under Section 37 NDPS Act is attracted. It was argued that the seizure and sampling was in consonance with the procedure and the shortcomings pointed out by the man cannot be considered at this stage and are to be decided only after trial.
The high court perused through the statement of Seizure Officer recorded during the trial as well as the manner adopted for the same and observed, that the samples were drawn by the Judicial Magistrate himself and the list of contraband was also prepared by him with his own signature. This list was then verified by the police officer, indicating that the procedure was carried out under a police officer's supervision.
"It was in utter non-compliance with the necessary legal protocols," the high court said.
The court noted that the seizure officer conducted a "personal search" of the man and during that search, contraband was recovered from a bag in his possession; however the procedure for issuing the notice under Section 50 NDPS Act raised important concerns.
The court said that no consent was obtained from the man for any of the options given in the provisions; instead his signature was given as receipt of the Section 50 notice, calling into question whether the compliance was proper and legal.
"In the present case, the seizure officer issued a notice under Section 50 of the Act but failed to obtain an option from the petitioner regarding the manner of search. This procedural deficiency is critical since failure to obtain option from the accused, prima facie invalidates the search. The failure to obtain an option from accused leads to a presumption of prejudice. It is prima facie presumed that the accused was deprived of a vital protection, which could have influenced the search's outcome. Evidence obtained from a prima facie invalid search, may be questionable in court, weakening the prosecution's case. Procedural non-compliance raises doubts about the legality of the search since statutory rights of petitioner were violated. In essence, the procedural lapse undermines the legitimacy of the evidence i.e. the contraband seized, making the case for bail stronger due to likelihood of acquittal or a weakened prosecution," the high court observed.
Without getting into the merits of the matter, the court said that the rigours of Section 37(offences under the Act are cognizable and non-bailable) is duly satisfied. Observing that no useful purpose will be served by keeping the man in detention for an indefinite period the high court went on to grant bail to the man, subject to certain conditions.
Case Title: Ganpat Singh v State of Rajasthan
Citation: 2024 LiveLaw (Raj) 264