Re-Writing The Law On Search Under Section 50 Of The NDPS Act. Critiquing The Recent Judgment Of Supreme Court In Arif Khan vs. State of Uttarakhand

In a recent judgment[1] the Supreme Court appears to have re-written the law on Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) by holding that Section 50 mandatorily requires search to be carried out in the presence of a Magistrate or a Gazetted Officer even where the suspect has waived in writing his right to be taken to a Gazetted Officer or Magistrate.

Section 50 of the NDPS Act requires that prior to commencing search of a suspect, the officer carrying out search must inform the suspect that if he so requires the suspect shall be taken to the nearest Magistrate or Gazetted Officer without delay, where such officer or Magistrate may either cause his search to be made or direct his release if no reasonable ground for search is made. Section 50 reads as follows:

“50. Conditions under which search of persons shall be conducted.

(1) 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.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. …”

Section 50 of the NDPS Act is clear and unambiguous. It does not direct that in all circumstances the search be made in the presence of the Gazetted Officer or a Magistrate. The provision requires the officer carrying out search to inform the suspect of his/ her legal right to be taken to the nearest Gazetted Officer or a Magistrate. Curiously enough the Supreme Court ruling in Arif Khan (supra) refers to the two seminal constitution bench judgments on Section 50 [State of Punjab vs. Baldev Singh (1999) 6 SCC 172, and Vijaysinh Chandubha Jadeja vs. State of Gujarat (2011) 1 SCC 609], which both hold that Section 50 imposes an obligation on the officer carrying out search to inform the suspect of his/ her right to be taken to a nearest Gazetted Officer or a Magistrate before his search is taken. The Court in Arif Khan (supra) nonetheless differs from the earlier decisions without giving any reasons whatsoever.

The law declared by the Supreme Court in Baldev Singh (supra) and Vijaysinh Jadeja (supra) is that strict (as opposed to ‘substantial’) compliance of Section 50 is mandatory. The Court has repeatedly held that the officer carrying out search must apprise the suspect of his/ her right to be taken to the Gazetted Officer or a Magistrate prior to commencing search. The obligation is to inform the suspect in a manner so that the suspect understands his legal rights to be taken to Gazetted Officer or a Magistrate. Once the suspect is informed of his rights, s/he may opt to be taken to a Gazetted Officer or a Magistrate or s/he may agree to be searched by the officers.

Courts have held that Section 50 requirement is complied with so long as the suspect is informed of his/ her right to be taken to a Gazetted Officer or a Magistrate.[2] The essential ingredient of Section 50 is the intimation by officers to the suspect. The suspect may then consent to be searched by the officers at the spot or require them to take him/ her to a Gazetted Officer or a Magistrate. There is no requirement in Section 50 or the law declared by Supreme Court in a series of judgments interpreting Section 50 that the suspect must be taken to a Gazetted Officer or a Magistrate even where the officer carrying out search has informed the suspect in writing of his legal rights and the suspect has consented to be searched by the officers on the spot. The recent judgment in Arif Khan (supra) clearly runs counter to the mandate of Section 50 and almost all earlier judgments on this provision.

Since the Court in Arif Khan (supra) refers to and relies upon Baldev Singh (supra) and Vijaysinh (supra) judgments to hold that search under Section must be mandatorily made in the presence of a Magistrate or a Gazetted Officer even where the suspect has agreed to be searched by officers on the spot, it becomes relevant to extract the findings of Court in Baldev Singh (supra) and Vijaysinh (supra) to show that the Court has not correctly appreciated the mandate of Section 50 or the binding precedents.

In the State of Punjab vs. Baldev Singh (supra), constitution bench of the Supreme Court held as follows:

“57. On the basis of the reasoning and discussion above, the following conclusions arise:

 (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing;

 (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused;

 (3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act; … ”

Similarly, in Vijaysinh Chandubha Jadeja vs. State of Gujarat (supra), the constitution bench held as follows:

“22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far 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 a 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.

We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of Sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.

 We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well.”

It is clear from above that the Constitution bench of the Supreme Court in Baldev Singh (supra) and Vijaysinh (supra) has held that compliance with Section 50 is mandatory and that Section 50 does not require the accused to be necessarily taken to a Magistrate or Gazetted Officer in all circumstances but instead Section 50 requires the officer concerned to only inform the suspect of his/ her legal rights to be taken before a Magistrate or Gazetted Officer.

In Arif Khan (supra), the Supreme Court has erred in construing the mandate of Section 50 and of Baldev Singh (supra) and Vijaysinh (supra). The Court in Arif Khan (supra) cites these two judgments and Section 50 and records that they impose an obligation on the officer to intimate the suspect of his right to be taken to a Magistrate or Gazetted Officer but shockingly thereafter in paras 24 and 25 the Court concludes that the test of Section 50 is whether or not the search was affected in the presence of a Magistrate or Gazetted Officer. This is a misreading of Section 50 and earlier pronouncements of the Court. In para 26, the Court records the important fact that the accused in the facts of Arif Khan (supra) was informed in writing of his right to be searched before a Magistrate or Gazetted Officer but the accused gave his consent in writing to be searched by the police officers only. This in my view should have ordinarily satisfied the strict requirement of Section 50 however in para 28, the Court holds that Section 50 is not complied with since the accused was not taken before a Magistrate or Gazetted Officer. In my view, once the accused was informed of his rights under Section 50 and has waived his right to be taken to the nearest Magistrate or Gazetted Officer, there is no question of affecting his search before the Magistrate or Gazetted Officer. That is the consistent position of law declared by the Supreme Court. The Court in Arif Khan (supra) erroneously held as follows in Para 28:

“ … in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer.”

The judgment in Arif Khan (supra) therefore does not appear to correctly appreciate the requirements of Section 50 and the law declared by the constitution benches of the Supreme Court in Baldev Singh (supra) and Vijaysinh (supra).

As an aside, in my view, while the Court may have erroneously interpreted Section 50 and the two constitution bench judgments, the conclusion drawn by the Court should be the law of the land albeit for different reasons. This I say because in a number of cases Section 50 is abused by the officers and its compliance is made after carrying out the search. In the last paragraph of Vijaysinh (supra), the Court observed that while Section 50 does not so require, in order to impart transparency and legitimacy to the search an endeavor should be made in the first instance to produce the accused before the nearest Magistrate or Gazetted Officer. In a small state like Delhi, the nearest Magistrate or Gazetted Officer is never more than a few kms away from the place of apprehending the accused and as such the suspect can be easily taken to the nearest Magistrate of Gazetted Officer. Other states would also do well to notify more officers as Gazetted Officers in order to ensure legitimacy in the process of search. The Court in Arif Khan (supra) unfortunately did not consider this aspect. It should have, in my view, interpreted Section 50 from an accused centric perspective and in view of the last paragraph of Vijaysinh (supra) held that Section 50 should now be read to mandatorily require the concerned officer to produce the suspect before the Gazetted Officer or Magistrate. That said, the reasons given by the Court and consequently the conclusion drawn in Arif Khan (supra) require reconsideration since Court has offered no reasons to differ from the long line of decisions on the subject.

Ajit Sharma is an Advocate on Record at Supreme Court. Author is reachable on sharma.ajit@gmail.com.

[1] Arif Khan @ Agha Khan vs. State of Uttarakhand dt. 27.04.2018 [(2018) 6 SCALE 456] [available at https://www.sci.gov.in/supremecourt/2006/29853/29853_2006_Judgement_27-Apr-2018.pdf]

[2] See (i) Sajan Abraham vs. State of Kerala [(2001) 6 SCC 692] [holding that oral intimation by an officer to suspect of his rights under Section 50 is sufficient compliance of Section 50 requirements and a formal written communication is not essential];

(ii) Prabha Shankar Dubey vs State of Madhya Pradesh [(2004) 2 SCC 56] [holding that Section 50 requires the concerned officer to convey the choice suspect has – either to be taken to a Magistrate/ Gazzt. Off. or be searched by concerned officers on the spot. This judgment also quotes from a Section 50 notice];

(iii) Myla Venkateswarlu vs. State of Andhra Pradesh [(2012) 5 SCC 226] [reiterating that it is imperative for the concerned officer to inform the suspect of his rights under Section 50 and failure to inform the suspect would vitiate the search and consequently the conviction of the accused]; and

(iv) Sekhar Suman Verma vs. Superintendent, NCB [(2016) 11 SCC 368] [Justice A.M. Sapre, speaking for the Court, held that Section 50 requires only an offer to be made to the accused to be taken to a Gazzt. Off. or a Magistrate].