What the Supreme Court said about search of persons under Section 50 of NDPS Act [Read judgment]

The Supreme Court has held that requirements of Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) are mandatory and not directory and search and recovery of contraband should be in the presence of a Gazetted Officer or a Magistrate..The judgment was delivered by a Bench of Justices RK Agrawal and Abhay Manohar Sapre in a criminal appeal in the case of Arif Khan v. State of Uttarakhand. The Court set aside the conviction of the appellant-accused on the ground that the procedure laid down in Section 50 was not complied with..The appeal was filled by the appellant-accused against his conviction by the Uttarakhand High Court. The appellant was convicted and awarded rigorous imprisonment for a term of ten years and fine of ₹1,00,000 for possession of contraband item “charas” (hashish) under the provisions on the NDPS Act..The incident dates back to 2002 when the appellant-accused was apprehended by the Police on the basis of a secret tip-off. The established facts of the case state that:.The Police’s raiding party asked the appellant-accused whether he was in possession of “charas” to which he replied in an affirmative.The raiding party also informed the appellant-accused that it was his legal right to be searched in the presence of a Gazetted officer. However, the appellant-accused, in this case, gave his consent to be searched by the raiding party.The search led to seizure of about 2.5 kg of “charas” which is a punishable offence under the NDPS Act..These facts led to the conviction of the appellant-accused in the trial court which was upheld by the High Court as well..The case presented by the appellant-accused before the Supreme Court was that the search and seizure of the contraband item was not done in accordance with the law stated under Section 50 of the NDPS Act. The Supreme Court focused on the issue at hand of whether the search and consequent seizure was in consonance with the law..The Court looked into the question of whether the presence of a gazetted officer or Magistrate as stated under Section 50 of the NDPS Act is mandatory or a mere directory provision. Placing reliance on precedents set by the Supreme Court in the cases of Vijaysinh Chandubha Jadeja v. State of Gujarat as well as State of Punjab v. Baldev Singh, the Court concluded that the law mandates that a search of this nature is carried out in presence of designated officers. The Court noted that this is a provision that needs strict compliance..The Court also stressed that it is the duty of the officer-in-charge of the raiding party to inform the apprehended person of his legal right to be checked only in the presence of a gazetted officer or a Magistrate..The Court highlighted that the officers of the raiding party in the instant case were not empowered to make a search without the presence of a gazetted officer or a Magistrate and effectively overstepped their capacity. It, therefore, held that non-compliance of this provision has proved “fatal to the case of the prosecution.”.Hence, it set aside the conviction of the appellant-accused and acquitted him of charged under NDPS Act on account of non-compliance of mandatory provisions of search and seizure by the raiding authorities..Read the judgment below.