S. 50 NDPS Act Applies Only To Personal Searches And Not To Searches Of Bags Carried By The Person: Supreme Court

The Supreme Court recently observed that Section 50 of the Narcotic Drugs and Psychotropic Substances Act, which outlines the procedure for conducting search of a person, applies only to personal searches and not to searches of bags carried by the person being searched.

“the exposition of law on the question regarding the requirement of compliance with Section 50 of the NDPS Act is no more res integra and this Court in unambiguous term held that if the recovery was not from the person and whereas from a bag carried by him, the procedure formalities prescribed under Section 50 of the NDPS Act was not required to be complied with”

A bench of Justice CT Ravikumar and Justice Sanjay Karol set aside the Kerala High Court's judgment dated May 23, 2023, acquitting an accused in a narcotics case.

The Supreme Court reinstated the trial court's conviction, holding that the acquittal by the HC was contrary to established legal principles regarding compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

Section 50 specifies the conditions for searching a person under the NDPS Act:

1. A person to be searched has the right to be taken to the nearest Gazetted Officer or Magistrate.

2. If requested, the officer can detain the person taken to the officer or Magistrate.

3. The Gazetted Officer or Magistrate can discharge the person if he/she sees no reasonable ground for a search.

4. Women must be searched only by female officers.

5. If the authorised officer cannot take the person to a Magistrate or Gazetted Officer due to the possibility of the person to be searched parting with possession of contraband, the authorised officer may search immediately, following section 100 of the CrPC.

6. The authorised officer must document the reasons for the search under subsection 5 and report them to the immediate superior within 72 hours.

The prosecution's case was that on January 10, 2019, an Excise Inspector during a patrol found the respondent with a bag containing 2.050 kilograms of Ganja. Following the discovery, the respondent was charged under Section 20(b)(ii)(B) of the NDPS Act (possession of intermediate quantity of cannabis).

The Trial Court convicted the respondent concluding that Section 50 of the NDPS Act, which mandates certain procedural safeguards during search and seizure, did not apply since the contraband was found in a bag and not directly on the person of the respondent. Accordingly, the respondent was sentenced to five years of rigorous imprisonment and a fine of Rs. 50,000, with an additional six months' imprisonment in case of default in payment of the fine.

On the respondent's appeal against conviction, the Kerala HC acquitted him. The HC ruled that the search and seizure were illegal due to non-compliance with Section 50 of the NDPS Act. Therefore, the State of Kerala filed the present appeal against acquittal in the Supreme Court

The State of Kerala contended that the HC's interpretation of Section 50 was flawed and the mandatory procedures of Section 50 did not apply since the contraband was found in a bag carried by the respondent and not directly on his person.

The Supreme Court relied on Ranjan Kumar Chadha v. State of Himachal Pradesh 2023 LiveLaw (SC) 856, to hold that the HC's decision was not in line with the settled legal position.

The Supreme Court held that Section 50 of the NDPS Act applies only to personal searches and not to searches of bags. The recovery of contraband from the bag in possession of the respondent did not necessitate compliance with Section 50, the Court held.

Therefore, the Supreme Court ruled that the HC's judgment acquitting the respondent could not be sustained and reinstated the trial court's conviction.

The respondent had already served four years, four months, and twenty-one days of his sentence. The maximum sentence under Section 20(b)(ii)(B) of the NDPS Act can extend up to ten years.

In this case, the Supreme Court decided to confine the respondent's sentence to the period he had already served. However, the Court upheld the fine of Rs. 50,000 imposed by the trial court.

Case no. – Special Leave to Appeal (Crl.) No. 13937/2023

Case Title – State of Kerala v. Prabhu

Citation : 2024 LiveLaw (SC) 640