[NDPS Act] Not Enough For Second Officer To Verbally State That SHO Authorised Search; Must Present Documentary Proof: Rajasthan HC

The Jodhpur bench of the Rajasthan High Court recently granted bail to three men in an NDPS Act case, after noting that the officer who had conducted the search and seizure did not have the documentary evidence to prove that he was legally authorised to conduct the search under the Act.

In doing so, the high court, while referring to Sections 41 and 42 of the NDPS Act, said that certain powers under the provisions rests only with the SHO of the concerned police station. It thereafter noted that the seizure officer in the present case was not authorized by the concerned SHO to carry out the action, thereby vitiating the same.

For context, Section 41 pertains to the power to issue warrant and authorisation and Section 42 refers to power of entry, search, seizure and arrest without warrant or authorisation.

When second police officer conducts seizure he has to prove he was acting as SHO

A single bench of Justice Rajendra Prakash Soni in its order said, "Under the Narcotic Drugs and Psychotropic Substance Act, the legal principle regarding search and seizure action is particularly stringent due to severity of the penalties and importance of safeguarding rights of individuals. When a second officer claims to have carried out a search or seizure under the NDPS Act on the authority as a SHO, it is not enough for him to simply depose this verbally. The NDPS Act requires strict adherence to procedural safeguards, including documentary proof that second officer was legitimately acting as SHO at the relevant time. The principle touches upon legal validity and authority of search or seizure by a competent law enforcement personnel".

Justice Soni said that the rationale behind this requirement is grounded in the law's intent to "prevent abuse of police powers" and to ensure accountability in search and seizure actions, given the serious nature of NDPS cases.

Certain powers u/Sections 41 and 42 specifically conferred on SHO only

Referring to Sections 41 and 42 of the Act the court said that under these provisions "certain powers are specifically conferred on SHO only" and for the second officer's actions to be considered lawful, it is necessary to show with "documentary evidence" that he was given the charge of the SHO's post.

The high court also noted that the seizure officer in his cross examination had admitted that on the day of the recovery, another officer was posted as the SHO of the concerned police station. He had also admitted that there was no document to suggest that he had formally taken charge as the SHO of the concerned police station, the court noted.

The court thereafter said that in the present case, the concerned officer who had conducted the search and seizure had failed to present any written and valid documentary evidence showing that he acted having the authority of the SHO at the time of conducting the search and seizure. The action was thus termed as unauthorized and beyond the scope of the officer's powers "prima facie" vitiating the search and seizure.

Background

The order was passed while the high court was hearing bail pleas by three men booked under the NDPS Act after they were found during police patrolling in a vehicle, in alleged possession of 3.15 Kg opium.

The applicants contended that apart from non-adherence to Section 50 (Conditions under which search of persons shall be conducted) NDPS Act, the search was conducted by an officer not authorised under the act.

It was submitted that only the SHO of the concerned police station has the legal authority to carry out these procedures, whereas the search was conducted by "second officer" of the police station which is a procedural illegality. They said that the second officer did not have the legal and valid charge of the SHO's post.

Findings

Perusing the record, the Court found substance in the argument of the applicants and noted that the search and seizure conducted by an officer was "prima facie" unauthorised and without jurisdiction.

It noted that the officer was not posted as SHO of the concerned Police Station and thus, he was not authorized to act in relation to the contraband, at a place falling within the territorial jurisdiction of said Police Station.

"Thus, the argument raised by the learned counsel for the petitioner regarding the search and seizure proceedings having been conducted by a person, who was not authorised to do so, carries weight in light of the mandatory provisions of Sections 41 & 42 of the NDPS Act," the court said.

With respect to the notice issued under Section 50 to the applicants, the court said that there was "prima-facie" non-compliance of the provision since notices under Section 50 issued to the petitioners do not mention any options or about the rights of petitioners.

"It only mentions about necessity which proves that seizure officer...has not complied with mandatory requirements of section 50 of NDPS Act as no option for search, containing rights of petitioners, was given to the petitioners. It prima facie renders search and seizure prima-facie questionable. When such is the importance of a right given to an accused in custody, the right by way of safeguard conferred under Section 50 of the Act is more important and valuable. Therefore, it is to be taken as an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in presence of a Gazetted Officer or a Magistrate. Therefore, provisions of Section 50 are mandatory," the court underscored.

Noting that the three men are not involved in any other NDPS case, the fact that the trial is likely to take time and without going into the merits of the case, the high court granted bail to the three men.

Case Title: Satya Narayan v State of Rajasthan and other related petitions

Citation: 2024 LiveLaw (Raj) 286

Click Here To Read/Download Order