NDPS Act | Accused's Refusal To Get A Search Conducted Under Section 50 Would Be Vitiated If He Misunderstands Questions Put To Him: Delhi HC

The Delhi High Court has observed that refusal by an accused to get a search conducted before a Gazetted Officer or a Magistrate under section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 would be vitiated if he misunderstands, misinterprets or even due to miscommunication of the questions put to him.

Justice Anish Dayal observed that the requirements of section 50 being mandatory in nature, are in consonance with the right of an accused to know of his legal rights.

"The compliance of such requirements should therefore, be complete and not left in doubt. A mandatory requirement by definition, has to be complied with in toto, in its full letter and spirit, and not as a halfway measure or in a patchy, perfunctory manner or deficient manner," the court said.

The court made the observations while dismissing the appeal filed by the Delhi Police challenging the order of a special judge acquitting a Spanish national.

The foreign national was accused in an FIR registered in 2013 under sections 22, 23, 28 and 29 of NDPS Act. It was the prosecution's case that the accused, who was staying in a hotel in the national capital, was indulging in procuring and export of Ketamine, a psychotropic substance to foreign countries through courier.

While the special judge concluded that the prosecution was able to establish 4 kgs of Ketamine from the conscious possession of the accused, the court acquitted him observing that the recovery was vitiated for non compliance of mandatory procedural safeguards laid down under section 50.

As per the special judge, since the accused, being a Spanish national, was informed of his rights in English, he could not have not understood the scope of his legal rights in any other language than Spanish.

The foreign national in his statement recorded under section 313 of Cr.P.C had denied knowing any other language than Spanish.

The trial court further noted that there was no effort discernible at any stage on part of the empowered officer to secure presence of any Gazetted Officer or a Magistrate and chose to rely upon the written refusal of the accused rendered in English language. The special judge thus held that the said procedure did not comply with the mandate of law.

Upholding the acquittal, Justice Dayal observed that the accused was not totally familiar with English language and that the writing on the notice under section 50 was clumsy and forced.

"The so called alleged refusal by the accused to get a search conducted before a Gazetted Officer or a Magistrate would therefore, in the considered opinion of this Court, be vitiated on account of his part understanding/ misunderstanding/ mis-interpretation or even miscommunication of the questions put to him and/or his response," the court observed.

The court also noted that the accused had also requested for a translator before the High Court which was noted in the order dated February 12, 2014 and that the recording of evidence before trial court was read-over and explained to him through an interpreter.

"It is evident from the facts and circumstances stated above and as noted in the impugned order that the accused did not have the opportunity of a translator or an interpreter at a stage when he was accosted and the search was conducted and scope of his legal rights were attempted to be explained to him under the framework of Section 50 NDPS Act," the court observed.

Finding no infirmity in the impugned order, the court said that the accused was not in a position to understand the importance of what was being communicated and its impact on his life.

Title: STATE v. DENIS JAUREGUL MENDIZABAL

Citation: 2022 LiveLaw (Del) 1211

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