10/7/2019 Section 50 NDPS Act : Understanding The Jurisprudence Of Compliance

Section 50 NDPS Act : Understanding The Jurisprudence

Of Compliance
BY: PAREESH VIRMANI
7 Oct 2019 2:25 PM

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The High Court of Delhi in the case of Sumit Rai @ Subodh Rai v. State have
recently reiterated the law laid down by the Apex Court in the case of Arif Khan v.
State of Uttaranchal in regard with the section 50 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter NDPS Act). The High Court have
held that the presence of the Magistrate or a Gazetted Officer is mandatory during
the search of accused even if the accused have consented that such search be done by
the officer.

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10/7/2019 Section 50 NDPS Act : Understanding The Jurisprudence Of Compliance

Now let us first look at what the section 50 of the act read as:

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.
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(4) No female shall be searched by anyone excepting a female. 1[(5) When an

officer duly authorised under section 42 has reason to believe that it is not
possible to take the person to be searched to the nearest Gazetted Officer or
Magistrate without the possibility of the person to be searched parting with
possession of any narcotic drug or psychotropic substance, or controlled
substance or article or document, he may, instead of taking such person to the
nearest Gazetted Officer or Magistrate, proceed to search the person as
provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).

(6) After a search is conducted under sub-section (5), the officer shall record the
reasons for such belief which necessitated such search and within seventy-two
hours send a copy thereof to his immediate official superior.

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10/7/2019 Section 50 NDPS Act : Understanding The Jurisprudence Of Compliance

A bare reading of section 50(1) suggests that it is a duty of the Investigating officer to
apprise the accused of his legal right that his search for the possession of narcotics,
be conducted in the presence of the Magistrate or a Gazetted Officer, however, if the
accused waives off this legal right or consents (be it oral or written) then in a such a
case the Investigating officer can conduct his search for the same.

From the above mentioned dictum reiterated by the Delhi High court and what the
reading of section 50 articulates, one could clearly fathom that the both does not
stand on the same footing as Section 50 states that if the accused waives of his legal
right mentioned in sub-section (1) then in such case the empowered Investigation
officer may conduct the search for the Narcotics himself WHEREAS the dictum that
has been reiterated by the Delhi High court holds that the even if the accused has
waived off his legal right and consented the police official to conduct the search per
se it would still be mandatory for the Investigating officer to conduct the search of
the accused in the presence of the Magistrate or a Gazetted Officer and not by
himself.
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To understand as to how this transformation originated one has to refer to the Arif
Khan (supra) to unveil the answer.

Arif Khan (supra)

The question arose through this case was whether the search/recovery made by the
police officials from the appellant-accused of the alleged contraband (charas) can be
held in accordance with the procedure prescribed under section 50 of the NDPS Act?
The court whilst relying on the two Constitution Bench Judgments - State of Punjab
v. Baldev Singh [(1999) 6 SCC 172] and Vijaysinh Chandubha Jadeja v. State of Gujrat
[(2011) 1 SCC 609] - held that section 50 was not followed in its letter and spirit. The
court in para 24 gave reason justifying how the recovery/search conducted by the
police officials were not in consonance with the law laid down w.r.t. the above stated
two judgments in the following words:

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10/7/2019 Section 50 NDPS Act : Understanding The Jurisprudence Of Compliance

24. We do not agree to this finding of the two Courts below as, in our opinion, a
search and recovery made from the appellant of the alleged contraband "Charas"
does not satisfy the mandatory requirements of Section 50 as held by this Court in
the case of Vijaysinh Chandubha Jadeja (supra). This we say for the following
reasons:

24.1. First, it is an admitted fact emerging from the record of the case that the
appellant was not produced before any Magistrate or Gazetted Officer.

24.2. Second, it is also an admitted fact that due to the aforementioned first reason,
the search and recovery of the contraband "Charas" was not made from the appellant
in the presence of any Magistrate or Gazetted Officer.

24.3. Third, it is also an admitted fact that none of the police officials of the raiding
party, who recovered the contraband "Charas" from him, was the Gazetted Officer
and nor they could be and, therefore, they were not empowered to make search and
recovery from the appellant of the contraband "Charas" as provided under Section 50
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of the NDPS Act except in the presence of either a Magistrate or a Gazetted Officer.
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24.4. Fourth, 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.

At this juncture it is pertinent to discuss the law laid down in State of Punjab v.
Baldev Singh (supra) and Vijaysinh Chandubha Jadeja v. State of Gujrat (supra).

Baldev Singh (supra)

The question in this case before the court was whether the provisions of section 50
are mandatory or directory and, if mandatory, to what extent and the consequences
of non-compliance with it does not strictly speaking arise in the context in which the
protection has been incorporated in section 50 for the benefit of the person intended
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10/7/2019 Section 50 NDPS Act : Understanding The Jurisprudence Of Compliance

to be searched. The court however did not express any opinion whether it is directly
or mandatory but categorically held that it is imperative and obligatory and casts a
duty on the investigating officer to ensure that search of the suspect is conducted in
accordance with the compliance of section 50 and failure to apprise the person
concerned about his legal right may render the recovery of contraband suspect and
the conviction of an accused based on contraband bad and unstainable in law.

Vijaysinh Chandubha Jadeja (supra)

The question that came up before the court was whether section 50 of the NDPS
casts a duty on the empowered officers to "inform" the suspect of his right to be
searched in the presence of a Magistrate or a gazetted officer, if he desires so or
whether a mere enquiry by the said officer as to whether the suspect would like to be
searched in the presence of a Magistrate or a gazetted officer can be said to due
compliance with the mandate of said section?

Answering the said question the court held that it is imperative on the part of the
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empowered police officer to apprise the person intended to be searched of his right
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under section 50 of the NDPS act to be searched before a gazetted officer or a

Magistrate. It is not necessary that the information required to be given under
section 50 should be in a prescribed form or in writing, but is mandatory that the
suspect is made aware of the existence of his right to be searched before a gazetted
officer or a Magistrate, if so required by him and this mandatory provision requires
strict compliance. Thereafter, the suspect may or may not choose to exercise the
right provided to him under the said provision. The court also stated that the
concept of "substantial compliance" is neither borne out from the language of
section 50(1) nor is it in consonance with the law laid down in Baldev Singh case
(supra). Moreover, failure to "inform" the suspect about the existence of his said
right would cause prejudice to him. Failure to comply with section 50 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

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10/7/2019 Section 50 NDPS Act : Understanding The Jurisprudence Of Compliance

accused during such search. Any other interpretation of the provision would make
the valuable right conferred on the suspect illusionary and a farce.

The court thereafter in para 32 speaks about how taking the accused or suspect to the
Magistrate or the nearest gazetted officer will be more transparent, creditworthy,
and much more authentic for the entire proceedings, in the first instance, an
endeavour should be produced to produce the suspect before the 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.

Thus the court in Arif Khan (supra) relying on the above two Constitution Bench
judgments, the court held that it is mandatory for suspect to be taken to Magistrate
or the Gazette Officer even after the suspect has waived of his legal right. However,
there has been strong critique that the apex court has erroneously interpreted
section 50 and the law laid in above two Constitution Bench judgements.
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Why taking the suspect at a first instance to the Magistrate or a Gazetted Officer
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would be considered as a greater good?

Interestingly the Punjab & Haryana High Court in the case of Kulwinder Kumar @
Bona vs State Of Punjab [CRA-S-2805-SB-2015] whilst dealing with the same issue
whereby citing the Vijaysinh Chandubha Jadeja (supra) noted various reasons as to
why taking the suspect at a first instance would be considered to the greater good
which sort of gave us the reality check regarding the truthfulness of police officials-

20. …….and yet further, though a consent memo is shown to have been signed by the
petitioner to the effect that he did not wish to be searched in front of a Magistrate or
a gazetted officer, but it having been held in Jadeja that at least an attempt should be
made to produce an accused before a Magistrate, the petitioner needs to be granted
the benefit of doubt, especially as, with regard to signing of a consent memo, a
person who has already been apprehended by police officials, does not have much of
a choice to actually refuse to sign such memo, if he is pressurised to do so.
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10/7/2019 Section 50 NDPS Act : Understanding The Jurisprudence Of Compliance

In my opinion, attributing one hundred present truthfulness to the statements made

by police officials, though would be an ideal situation and actually should be so,
practically it is not possible to attribute such complete honesty to them always,
because like all human beings, not all police officials can be honestly accepted to be
truthful all the time, even though the intention behind any particular arrest, may
not be malafide, which of course at times could also be so.

Repercussion on Justice System & Prosecution's case by not following the Settled
Law

Speaking of the settled law laid down in Arif khan (supra), here I cannot omit to
discuss as to what will happen if the investigating authority does not conduct the
search in the presence of the Magistrate or the Gazetted officer. The failure of such
compliance will not only tip the compromise in Administration of Justice System
but also puts the court in a handcuffed situation whereby the Lady Justice wearing
the blind fold and holding the beam balance will give more weightage to accused
who was deprived of its procedural safeguard under section 50 merely on the laxity
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on the part of the investing agency. The situation is discussed in para 28 of the
Baldev Singh (supra) as following :

…….The argument that keeping in view the growing drug menace, an insistence on
compliance with all the safeguards contained in section 50 may result in more
acquittals does not appeal to us. If empowered officer fails to comply with the
requirements of section 50 and an order or acquittal is recorded on that ground, the
prosecution must thank itself for its lapses. Indeed in every case the end result is
important but the means to achieve it must remain above the board. The remedy
cannot be worse than the disease itself. The legitimacy of the judicial process may
come under the cloud if the court seen to condone acts of lawlessness conducted by
the investigation agency during the search operations and may also undermine
respect for the law and may have the effect of unconscionably compromising the
administration of Justice. That cannot be permitted.

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10/7/2019 Section 50 NDPS Act : Understanding The Jurisprudence Of Compliance

Déjà Vu of the Arif Khan (supra)

Coming on to the recent case of Sumit Rai @ Subodh Rai (supra) which is nothing
but the Déjà vu of the Arif Khan case (supra) where the Delhi High Court dealing
with the matter in hand having similar factual matrix, held that it is mandatory that
the search of the suspected person conducted under section 50 should be made in
the presence of a Magistrate or Gazetted officer even if the person has waived off his
legal right. The court once again whereby citing the Constitution Bench judgment of
Vijaysinh Chandubha Jadeja (supra) in para 18 stated in following words:

The ratio decidendi of Arif Khan (supra) as contained in para 28 of the said case
decision applies, therefore, to the present case on all fours. While it is true that
Vijaysinh Chandubha Jadeja (supra) would seem to suggest that, once the accused
was offered the option of having his search conducted in the presence of a magistrate
or a gazetted officer, he has declined the offer, section 50 stood complied with Arif
Khan (supra), after noticing, Vijaysinh Chandubha Jadeja (supra) as well as the law
laid down therein, holds, nevertheless, that, even where the accused – as in that case,
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and in the present case – declined the offer under section 50 of the NDPS Act, the
raiding team, was nevertheless, required to have the search of the appellant
conducted in the presence of a Gazetted Officer or Magistrate. The said enunciation
of the law binds me, by the virtue of Article 141 of the constitution of India.

Therefore, in a nutshell the Jurisprudence of Compliance under section 50 (till date)

tells us that it is mandatory for the police official or the investigating agency to
conduct the search for narcotics of the suspect person in the presence of the
Magistrate or a Gazetted Officer even if the suspect person or the accused, upon
being informed by the police official about his right to be searched in the presence of
the Magistrate or a Gazetted Officer, has relinquished such legal right under Section
50 the NDPS Act.

(The author is a final year BBA LL.B student of GGSIP University)

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10/7/2019 Section 50 NDPS Act : Understanding The Jurisprudence Of Compliance

Topics : NDPS Act | Narcotic Drugs and Psychotropic Substances Act | Section 50
NDPS Act | Recovery Of Narcotic Substance

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