S. 50 Of NDPS Act- Presence Of Magistrate During Search Of Contraband Articles Not Mandatory If Accused Waives His Right: Delhi High Court

"There is no requirement to conduct the search of the person, suspected to be in possession of a narcotic drug or a psychotropic substance, only in the presence of a Gazetted Officer or Magistrate, if the person proposed to be searched, after being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistrate categorically waives such right by electing to be searched by the empowered officer," observed a Division Bench of Justices Siddharth Mridul and Talwant Singh while answering a Single Bench reference on the issue.

It added,

"The words "if such person so requires", as used in Section 50(1) of the NDPS Act would be rendered otiose, if the person proposed to be searched would still be required to be searched only before a Gazetted Officer or Magistrate, despite having expressly waived "such requisition", as mentioned in the opening sentence of sub-Section (2) of Section 50 of the Act."

Section 50(1) of the NDPS Act states that when any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

It is settled law that the right of a person accused or suspected of being in possession of any narcotic drug or psychotropic substance, to be informed of his statutory right to be searched before a Gazetted Officer or Magistrate, if such person so requires, is mandatory.

The question before the Division Bench was whether search has to be conducted before a Gazetted Officer/ Magistrate even after the suspect/ accused waives off this right.

The Bench relied on a Constitution Bench judgment of the Supreme Court in Vijaysinh Chandubha Jadeja v. State of Gujarat, where it was held that the suspect may or may not choose to exercise the right provided to him under the provision.

The Top Court had held,

"insofar as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision."

In this backdrop, the Division Bench had ruled,

"The sequitur to this observation of the Supreme Court leaves no manner of doubt that once the suspect has been apprised by the empowered officer of his right to be searched before a Gazetted Officer or a Magistrate, but chooses not to exercise that right, the empowered officer can conduct the search of such person without producing him before a Gazetted Officer or a Magistrate, for the said purpose."

Background

The Division Bench was answering a reference made to it by a Single Bench of Justice Suresh Kumar Kait who noticed two contradictory judgments on the issue, rendered by single-benches of the High Court.

In the case of Innocent Uzoma v. State, Justice Vibhu Bakhru held that presence of Magistrate is contingent upon the desire of the accused. It was held,

"Plainly, there is no requirement to conduct the search in the presence of a Magistrate or Gazetted Officer, if the person proposed to be searched did not so desire, after being informed of his right in this regard. The words "if such person so requires" as used in Section 50(1) of the NDPS Act make it amply clear that the person to be searched would be taken before a Magistrate or a Gazetted Officer, only if he so requires."

In the case of Vaibhav Gupta v. State however, the High Court had held that compliance of Section 50 of the NDPS Act is mandatory and even if the accused has denied the same, still the search has to be conducted in the presence of the magistrate or Gazetted Officer.

Case Title: Nabi Alam alias Abbas v. State (Govt Of Nct Of Delhi)

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