Police Officer Is Gazetted Officer For Search Of A Person U/S 50 NDPS Act Unless He Is Part Of Investigating Team: Kerala High Court

The Kerala High Court recently held that any police officer being a gazetted officer would be competent to conduct a search under Section 50 (conditions under which search of persons shall be conducted) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The only exception to this would be a police officer part of the detecting or investigating team, as such an officer could not be considered an independent officer for the purposes of the search.

The court also clarified that ensuring the presence of the gazetted officer at the place of search, instead of taking the accused to the gazetted officer would not be considered non-compliance of Section 50 of the NDPS Act.

A single bench of Justice A Badharudeen was considering the bail application of a man who was arrested for possession of 0.9 grams of MDMA intended for sale which is punishable under the NDPS Act.

The contention of the counsel for the petitioner Adv. Arjun S. was that he was entitled to bail as the mandate under Section 50 of the NDPS act had been violated. According to the petitioner Section 50 was violated on two grounds. Firstly, that the search was conducted by the circle inspector of Police, who according to the petitioner is not a competent gazetted officer as prescribed under Section 50. Secondly, it was argued that under Section 50, it was mandatory for the accused to be taken to the gazetted officer or a Magistrate for the search if the accused opts for it.

The Senior Public Prosecutor P G Manu appearing for the state opposed the bail on the ground that the accused was a habitual offender and already had 3 other NDPS cases pending against him.

The court considered three questions in details in the matter at hand.

Firstly, whether the CI of police or any other gazetted officer under the Police Department could be considered ineligible to be a gazetted officer for the purposes of Section 50 of the NDPS Act? In this regard the court was of the view that any police officer who is a gazetted officer could not be considered incompetent for search under Section 50 of the NDPS Act.

“In fact, Section 50(5) provides that when an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973. Thus Section 50 imbibes presence of gazetted officer or a Magistrate at the time of body search of an accused or a suspect and it is not safe to hold that a police officer being a gazetted officer is either disqualified or incompetent to witness a search in terms of Section 50 of the NDPS Act. Therefore, it has to be held that any police officer being a gazetted officer is a qualified and competent gazetted officer for search of a person as stipulated in Section 50 of the NDPS Act.”

Secondly the court considered the question of whether a gazetted officer part of the detecting or investigating team would be considered a competent gazetted officer to conduct a search under Section 50 of the NDPS Act?

The court while relying on the decision of the decision of the Supreme Court in State of Rajasthan v. Premanand & anr [(2014) 5 SCC 345] was of the view that this was an exception under Section 50 of the Act. When the gazetted officer is part of the detecting or investigating team, he would not be competent to be a gazetted officer under Section 50 of the Act as such an officer could not be considered an independent officer for the purposes of the search.

Thirdly the court considered whether it would it be non-compliance of Section 50 of the Act if the accused is not taken to the gazetted officer or Magistrate, but instead the gazetted officer is brought to the location of detection of contraband. The court held that ensuring the presence of the gazetted officer at the place of detection, instead of taking the accused to the gazetted officer would still be considered compliance under Section 50 of the Act.

“Although the statutory wordings would give rise to an inference that the person to be taken/bring before the gazetted officer or the Magistrate, no hard and fast interpretation to be given to lay a proposition that if search was conducted in the presence of the gazetted officer or before the Magistrate by securing their presence at the place of search, the search is either vitiated or the same is against the mandate of Section 50 of the NDPS Act. To put it differently, when search is before a competent gazetted officer or the Magistrate, within the sweep of Section 50 of the NDPS Act, either by taking the person to be searched before the gazetted officer or the Magistrate or securing the presence of the gazetted officer or the Magistrate to the place of search, it has to be held that the mandate of Section 50 stands complied.“

Even though the court did not agree with the contentions of the petitioner, the accused was released on bail with stringent conditions considering the progress of investigation and on the ground that the petitioner had already spent some time in custody.

Case Title: Nithin V State of Kerala

Citation: 2023 LiveLaw (Ker) 137

Click here to read/download the judgement