Gazetted Officer Who Is Part Of Raid Is Not 'Independent', Personal Search Conducted By Him Does Not Constitute Compliance Of S.50 NDPS Act: Calcutta HC

The Calcutta High Court has recently observed that a Gazetted Officer who is a member of the raiding party cannot be said to be an independent person and thus a desire expressed by accused persons to be searched by such an officer does not constitute a voluntary relinquishment of the right enshrined under Section 50 of the Narcotic Drugs and Psychotropic Substance Act. 

A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi was adjudicating upon an appeal moved against an order passed by the concerned lower Court convicting the appellants for commission of offence punishable under Section 22(c) read with Section 29 of the NDPS Act. 

The issue in consideration before the Bench was whether the offer made by Narcotics Control Bureau (NCB) officers to the appellants that they have a right to be searched before a Magistrate or a Gazetted Officer, who is a member of the raiding party is in consonance with the statutory requirements of Section 50 of the NDPS Act or not. 

The Bench noted that in the instant case the appellants were misled by the incorrect offer given to them that they could be searched by a Gazetted Officer who is a member of the raiding party. 

Opining further that such a Gazetted Officer cannot be said to be an independent person before whom such a search can be conducted under Section 50 of the NDPS Act, the Court underscored, 

"A Gazetted Officer who had proceeded to the place of occurrence after entertaining reasonable belief that the accused persons may be carrying narcotic substance cannot be said to be an independent person before whom the law contemplates a search. In this backdrop, acceptance of the offer by the appellants to be searched before an officer who is a member of the raiding party cannot be said to be a voluntary expression of their desire to be searched before such officer."

The Bench emphasised that there was a clear misdirection in law in the offer given to the appellants and accordingly they were misled to agree to a search before an officer who was a member of the raiding party.

"By no stretch of imagination, such acknowledgment on their part can be said to be a voluntary relinquishment of the right enshrined under Section 50 of the NDPS Act", the Court observed further. 

The Court noted further that the crux of the safeguard enshrined under Section 50 of the NDPS Act is that an accused should be made aware of his right to be brought before a Magistrate or a Gazetted Officer prior to a personal search. Such offer may be oral or in writing but the terms of the offer must be clear, unequivocal and not create confusion in the mind of an accused with regard to the lawful requirements prior to the search in any manner whatsoever, it was stated further. 

Reliance was also placed on the Supreme Court judgment in Vijaysinh Chandubha Jadeja v. State of Gujarat wherein the Apex Court had underscored that there must be strict compliance of Section 50 of the NDPS Act. Reference was also made to the Supreme Court judgment in State of Rajasthan v. Parmanand & Anr wherein it had been held that an offer to be searched before a Gazetted Officer who is a member of the raiding party does not constitute valid compliance of Section 50 of the NDPS Act. 

The Court further noted that there is ample evidence on record to show that a body search of the appellants had also been undertaken when narcotic was recovered from a bag carried by the appellants. 

Accordingly, the Court ruled that a failure to comply with Section 50 in course of such search vitiates the seizure and the consequential conviction. Thus, the Court set aside the order of conviction and sentence imposed upon the appellants. 

Case Title: Ali Hossain Sk. @ Ali Hussain Seikh v. Narcotics Control Bureau

Case Citation: 2022 LiveLaw (Cal) 171

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