Religion is opium of the people, but today opium is the religion of the people, and like God, is omnipresent, omnipotent and omniscient.
– Justice Krishna Iyer.
There was an absence of comprehensive law to enable effective control over psychotropic substances in the manner envisaged by the International Convention of Psychotropic Substances, 1971. Therefore the Indian Parliament with a view to counter this challenge enacted the Narcotic Drugs and Psychotropic Substances Act, 1985 to consolidate and amend existing provisions relating to control over drug abuse etc. and to provide for enhanced penalties particularly for trafficking and various other offences. The Narcotic Drugs and Psychotropic Substances Act (NDPS Act), 1985 provides stringent penalties for such offences.
This article seeks to highlight the importance of statutory right given under Section 50 NDPS to a suspect and the ramifications that can arise because of its non-compliance.
The legislature took care to incorporate several provisions in Chapter V of the NDPS Act governing the arrest, search and seizure to afford certain safeguards so that innocent persons are not harassed. Section 50 of the NDPS Act is one such provision which requires compulsory compliance and non-compliance of this provision may vitiate the trial. The provision casts a duty upon the investigating officer to intimate the accused of his rights including the vital right to be searched before a magistrate or a gazetted officer.
While analyzing the scope and applicability of this section the Supreme Court in the State of Punjab v. Balbir Singh (1999) opined that keeping in view the menace of illicit drug trafficking, the legislature deemed it fit to provide for corresponding safeguards to check the misuse of such power given to the police, so that innocent persons are not harmed.
Importance and relevance of the right under section 50 and its applicability
A plain reading of Section 50 of the NDPS Act suggests that during the search of the accused person, "if such person so requires" he shall be taken to the nearest gazetted officer or magistrate. Non-compliance with such a provision may cause prejudice to an accused if he is not informed of his right to be searched before such such an officer or magistrate. And such failure to inform the accused of his right to be searched before a magistrate may render the recovery of the illicit suspected article void which in turn could vitiate his conviction and sentence.
Given the serious consequences that possession of illicit substances can attract under the NDPS Act, from the perspective of the accused, the right to be searched in front of a gazetted officer or a magistrate, if the suspect so requests, is a very valuable right.. Offences under the NDPS Act carry harsh penalties and therefore compliance with Section 50 of the NDPS Act cannot be taken lightly.
Section 50 of the NDPS Act protects the accused against being falsely implicated. As a result, the police must properly inform the accused of his valuable right and if the same is diluted, the very purpose of the provision could be defeated. The constitutional bench of the apex court in Vijaysinh Chandubha Jadeja vs. State of Gujarat (2011) reiterated that the purpose of the section was to check the misuse of power, to avoid harm to innocent persons, and to minimize the allegations of planting or foisting of false cases by the law enforcement agencies.
Can the accused plead ignorance?
In Ashok Kumar Sharma vs State of Rajasthan (2013), the apex court observed that ignorance does not normally afford any defense in criminal law. However, it would be unreasonable to expect a rustic villager, totally illiterate and a poor man, to be aware of the various laws laid down in this country i.e., leave aside the NDPS Act. Appreciating the intention and wisdom of the legislature in incorporating the section, the court reaffirmed its strict compliance to meet the ends of justice.
Does this provision lead to more acquittals and help in perpetuating the drug menace?
The apex court in Baldev Singh (supra) answered this question in the negative and held that keeping in view the growing drug menace, the argument that an insistence on compliance with all the safeguards contained in section 50 of the NDPS Act may result in more acquittals is incorrect. It further ruled that if empowered officers fail to comply with the requirements of the section and an order of acquittal is recorded on that ground, the prosecution shall be held responsible for its lapses. The court emphasized that while in every case the end result is important but the means to achieve the result must also remain above the board. The remedy cannot be worse than the disease itself, the court noted and held the legitimacy of the judicial process may come under the cloud if the court is seen to condone acts of lawlessness conducted by the investigation agency during the search operations.
Critical comments and conclusion
One of the main reasons, behind series of acquittals in NDPS cases is the non-effective compliance/non-compliance of the mandate of section 50 of the NDPS Act. The investigating and prosecuting agencies and its personnel are either ignorant of the wide ramifications of non-compliance of this provision or they have complete disregard for its effective compliance. The violation of this right leads to the search being declared as illegal and inadmissible due to which the conviction of the accused cannot be sustained.
As it was held by the apex court in Maneka Gandhi vs. Union of India (1978), it is no longer permissible to contend that the right to personal liberty can be curtailed even temporarily, by a procedure which is not "reasonable, fair and just" and when a statute itself provides for a 'just' procedure, it must be honored. Conducting a search under section 50 of the NDPS Act, without intimating to the suspect that he has a right to be searched before a gazetted officer or a magistrate, would be violative of the 'reasonable, fair and just procedure' and the safeguard contained in this provision.
In conclusion, it may be said that a large number of offenders are either convicted or acquitted due to non-compliance of the prescribed procedure, which might create a sense of insecurity in the society and undermine the faith of the common man in the administration of justice. Therefore, the investigating agencies must take due care and discharge their assigned duties in a professional manner to achieve the desired objectives of the provisions of section 50 of the NDPS Act.
The authors, Shivang Monga and Ruchir Misra, are second year students at the Maharashtra National law University, Mumbai.