NDPS Act | Whether Magistrate Before Whom Accused Is Brought Needs To Ask For Consent Before Conducting Search? P&H High Court Answers

The Punjab & Haryana High Court has said that Gazetted Officer or Magistrate is not required to take fresh consent or inform that the accused has right be searched in presence of Gazetted Officer or Magistrate when the concerned officer has already informed the accused under Section 50 of the NDPS Act.

Section 50 of the NDPS Act provides both a right as well as an obligation. The person about to be searched has the right to have his search conducted in the presence of a Gazetted Officer or Magistrate if he so desires, and it is the obligation of the police officer to inform such person of this right before proceeding to search the person of the suspect.

Justice Sureshwar Thakur and Justice Sudeepti Sharma said, "... when the Gazetted Officer or the Magistrate either proceeds to the crime site for the relevant purpose or upon the accused becoming produced before the nearest Gazetted Officer or before the nearest Magistrate, for his/her being personally searched before the aforesaid. Consequently, in both the situations (supra), there is no necessity of a fresh consent becoming obtained from the accused, thus appertaining to his personal search becoming carried by the officer concerned or by the Magistrate concerned."

The reference was made by the single judge after conflicting opinions of the coordinate bench, to consider the question, "Whether a Gazetted Officer or a Magistrate before whom any such person is brought, or when such a Gazetted Officer or a Magistrate proceeds to the crime site, is also then required to comply with the provisions of Section 50 of the NDPS Act by apprising the accused of his/her right, relating to his/her being asked to re-furnish his/her fresh consent for thus his/her personal search becoming carried in the presence of the Gazetted Officer or the Magistrate ?."

Answering the question in negative, the Court said that the Gazetted Officer or the Magistrate is not required to take the fresh consent when the same has already been taken by the investigating officer.

The division bench said that there is no requirement in the statute to take the repetitive signature for consent of the accused.

"Therefore, since this Court cannot travel beyond the contours of the statutory provisions which however, for the reasons (supra) does not require any signatured re-consent being obtained by the accused, when he appears before the nearest Gazetted Officer and/or before the nearest Magistrate," added the bench.

In light of the above, the reference was answered.

Mr. L.S.Sekhon, Advocate and Ms. Nitika Sekhon, Advocate

for the petitioner (in CRM-M-26565-2021).

Mr. Aman Dhir, Advocate for the petitioner (in CRM-M-29788-2021)

Mr. Ankur Mittal. Addl. A.G., Haryana with Mr. P.P.Chahar, Sr. DAG, Haryana.

Mr. Maninderjit Singh Bedi, Addl. A.G., Punjab with Mr. Maninder Singh, Sr. DAG, Punjab.

Title: Ravinder @ Ravi @ Ravinder Pal v. State of Haryana

Citation: 2024 LiveLaw (PH) 268

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