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A Division Bench of the Delhi High Court will decide whether compliance of Section 50 is complete when an accused waives his right to be searched in the presence of a gazetted officer or a Magistrate.
Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ordinarily has always been summum bonum of every defence arguing counsel in prosecutions emanating from the Act. This section has always drawn a thin line of difference between acquittal and conviction.
It is true that the juridical status of this section has always been in a state of flux, and the reason to state that is elucidated in this critique. This is an attempt to examine and simplify for readers, the object of Section 50 of the Act in light of the relevant judicial pronouncements and changes of applicability and execution of the said provision.
The Explanatory Verse
Section 50 of the Act prescribes the conditions under which personal search of a person is required to be conducted. A pivotal provision, the Section reads:
Sub-section (1) provides that when the authorised officer is about to search any apprehended person, he shall, if the person to be searched so requires, take him to the nearest gazetted officer or the Magistrate. Section 50 (2) prescribes that if such a request is made by the apprehended person, the authorised officer may detain that person until he is brought before the Gazetted officer or the Magistrate. Sub-section (3) provides that when the apprehended person is brought before such gazetted officer or Magistrate and such Gazetted officer or the Magistrate finds that there are no reasonable grounds for conducting the search, he shall forthwith discharge the person to be searched, otherwise he shall direct search on that person.
Under sub-section (4), it is laid down that personal search of a female shall only been conducted by a female officer. This provision is pari materia to Section 51(2) of the Code of Criminal Procedure, 1973, which lays down that whenever it is necessary to search a female, the search shall be made by another female with strict regard to decency. Sub-sections (5) and (6) provide that when the authorised officer has reason to believe that it is not possible for him to take that apprehended person to the nearest gazetted officer or the Magistrate, he may proceed to search the person and record in writing the reasons for doing so. A copy of that report shall be forwarded to his immediate superior within seventy-two hours.
In other words, the mandate of Section 50 is precise and clear, that if the person intended to be searched expresses to the authorised officer his desire to be taken to the nearest gazetted officer or Magistrate, he cannot be searched till the gazetted officer or the Magistrate, as the case may be, directs the authorised officer to do so.
Section 50 of the Act, acts as a safeguard to check the misuse of power, to avoid harm to innocent persons, and to minimize the allegations of planting or foisting of false charges by the law enforcement agencies. To put it differently, fair play and transparency in the process of search has been given utmost primacy.
Adverting now, chronologically, to the oft-cited judgments on Section 50 of the Act, as authoritatively held by the Supreme Court of India.
In this case, 5 kg 890 grams of opium concealed in a scooter, was seized from the persons who were riding the scooter. The said persons were arrested but acquitted by the learned Sessions Judge on the ground that the mandatory statutory requirement of Section 50 of the Act had not been complied with. The decision was reversed by the Madhya Pradesh High Court (Gwalior Bench), resulting in the matter drifting to the Supreme Court.
The Supreme Court observed that “it is now well settled that the offence committed under the Act is a grave one. Procedural safeguards provided therefor in terms of Section 41,42 and 50 of the NDPS Act should be complied with.”
Special reliance was placed by the Supreme Court on its earlier decision rendered by a Constitution Bench in State of Punjab v. Baldev Singh, which held that where provisions of Section 50 were attracted, compliance was mandatory. The Supreme Court set aside the judgment of the High Court and directed the appellant to be released forthwith.
The short question of law that arose before the Constitution Bench of the Supreme Court in this case was whether the compliance of requirements of Section 50 of the Act are mandatory or directory. DK Jain, J. (speaking for the Bench) held that the obligation of the authorised officer under sub-section (1) of Section 50 of the Act is mandatory and requires strict compliance.
The Supreme Court unanimously went on to state that the failure to comply with the said provision would “render the recovery of the illicit article suspect and vitiate the conviction”.
Opium weighing 9 kg 600 grams was recovered from the bag of the respondents, which was also searched along with the search on those persons. Before conducting search, a joint notice under Section 50 of the Act was served upon them and they were apprised of their legal right to get themselves searched in the presence of a Gazetted officer or a Magistrate. While the second respondent had consented in writing to be searched by the raiding team, the first respondent had not appended his signature on the body of the notice and did not give his independent consent.
The Supreme Court went on to hold that “a joint communication of the right available under Section 50 (1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed...”
It is clear from the reading of the aforementioned decisions that if the recovery of illicit contraband took place from the bag carried by the accused, Section 50 of the Act would apply, and non-compliance therewith would vitiate the trial.
Pursuant to receipt of secret information, a raiding team was constituted which spotted the appellant (Arif Khan) and intercepted him. On being questioned, he admitted being in possession of charas. He was given a notice under Section 50 of the Act, and was informed of his statutory right to have his search conducted in the presence of a gazetted officer or a Magistrate, to which he replied that “he had faith in the raiding party” and consented to be searched by them.
Thereafter, the raiding party searched the accused, which yielded charas weighing around 2.5 kg. Having his conviction order upheld by the Uttarakhand High Court and aggrieved by the said decision, he filed an appeal before the Supreme Court.
The interesting question of law that arose for consideration before the Supreme Court in this case was whether once the appellant had refused the offer of having his search, and the search of his bags in his possession, conducted in the presence of a gazetted officer or a Magistrate, the authorised officer was justified in proceeding to conduct the search of the appellant and his bags himself.
The principal contention advanced by learned counsel appearing for Arif Khan before the Supreme Court was that there had been violation of Section 50 of the Act, inasmuch as the search of the appellant had not been conducted in true spirit of the provision. Per contra, it was the case of the prosecution that since the appellant was apprised of his right to be searched in the presence of a gazetted officer or a Magistrate, he gave in writing to be searched by the police officials, the two courts rightly came to a conclusion that Section 50 of the Act stood fully complied with.
The Supreme Court did not accept the findings of the two courts below and allowed the appeal mainly on three grounds: (i) the appellant was not produced before any Gazetted officer or a Magistrate; (ii) search on the person of the appellant was not conducted in the presence of any gazetted officer or a Magistrate; and (iii) none of the police officials from the raiding team was a gazetted officer.
Arif Khan, and its sequelae
Arif Khan marks a radical change in the jurisprudence relating to Section 50 of the Act. The Supreme Court in Arif Khan, after appreciating its earlier two Constitution Bench decisions namely Baldev Singh (supra) and Vijaysinh Chandubha Jadeja (supra), has expanded and amplified the sweep of Section 50 of the Act and held that even though the apprehended person waived off his right in writing to be taken to a gazetted officer or a Magistrate, Section 50 insists search only in the presence of a gazetted officer or a Magistrate.
In any event, there have been deliberations that the Apex Court has erroneously interpreted the law laid down in the aforementioned two Constitution Bench judgments. Interestingly, the Supreme Court on 24 July 2019, dismissed the review petition of Arif Khan, on the ground of delay as also on merits.
Lately, an identical question of law arose before the Delhi High Court i.e. if the apprehended person is explained of his rights available to him under Section 50 of the Act and if at any stage he declined to avail his rights then in that case, whether compliance of such provision is complete or not?
The learned Single Judge in this case, after taking note of two orders/judgments passed by another co-ordinate Bench being contrary to each other on the subject, has referred the matter to larger Bench for adjudication. The Chief Justice, on June 18, was pleased to constitute a Division Bench comprising Justices Siddharth Mridul and Talwant Singh to decide the present issue in hand.
We await the Division Bench’s decision with impatience. The Delhi High Court will certainly enunciate the law to settle the troubled waters.
The author is an advocate based in Delhi. He may be contacted via email at email@example.com. Views are personal.