Delhi High Court
Nabi Alam @ Abbas vs State (Govt Of Nct Of Delhi) on 4 June, 2021
#J-1
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved via Video Conferencing On : 05.02.2021
Judgment Pronounced via Video Conferencing On : 04.06.2021
BAIL APPLN. 2641/2018 & CRL.M.(BAIL) 555/2021
NABI ALAM @ ABBAS ..... Applicant
versus
STATE (GOVT. OF NCT OF DELHI) .....Respondents
Advocates who appeared in this case:
For the Applicant: Mr. Aldanish Rein, Advocate.
For the Respondent: Mr. Amit Chaddha, APP for the State of NCT Delhi.
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. JUSTICE TALWANT SINGH
JUDGMENT
SIDDHARTH MRIDUL, J
1. The present matter has been received by way of Reference víde
Referral Order dated 15.06.2020 passed by learned Single Judge of
this Court and marked to this Bench by Hon'ble the Chief Justice by
directions dated 18.06.2020, to adjudicate and settle the question of
law vis-à-vis the Provision of Section 50 Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as the
'NDPS Act'), which governs the procedure qua the search of a person
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suspected of being in possession of a narcotic drug or a psychotropic
substance, inter alia before a Gazetted Officer or Magistrate.
2. The genesis of the present proceeding, that calls for
determination is that a bail application under Section 439 of the
Code of Criminal Procedure, 1973 (hereinafter referred to as
'Cr.P.C.'), primarily seeking regular bail pending ensuing trial before
the Court of learned Additional Sessions Judge/ Special Judge
(NDPS), West, Tis Hazari Courts, Delhi, was instituted on behalf of
the applicant/accused, which was dismissed by learned Sessions
Court víde order dated 13.07.2018.
3. Thereafter, the present bail application under Section 439
Cr.P.C was filed, which has been referred to this Bench by the learned
Single Judge of this Court, by reason of the statedly contradictory
views expressed by various Benches of this Court qua the scope and
ambit of the stipulations contained in Section 50 of the NDPS Act,
particularly in relation to the question whether, even though the
accused at the time of his search has been apprised of his right to be so
searched in the presence of a Gazetted Officer or Magistrate, 'if he so
requires' but has expressly waived his right to be so searched before a
Gazetted Officer or Magistrate; is it still mandated by the said
provision that the the accused be searched only before a Gazetted
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Officer or Magistrate.
4. The substratum of the present case is that, upon the reception of
a tip-off by Sub-Inspector Vinod, Narcotics Cell, Police Station-
Crime Branch on 27.07.2017, it was brought to his notice that two
people namely Nabi Alam (the present applicant/accused) and Mohd.
Aakil were allegedly indulging in the supply of Heroin in Delhi,
which the applicant/accused and his accomplice obtained from
Badaiyu/Bareli and that they would be supplying a big consignment of
the contraband Heroin between 2.00 p.m. to 2.30 p.m. near traffic
light at Chanakya Place, Uttam Nagar. It was also intimated to the
police officer by the secret informer that, if a raid were to be
conducted at that time, the accused persons could be caught off-guard,
while selling or/and purchasing Heroin. Accordingly, a raid team was
formed and the applicant/accused Nabi Alam along with one Mohd.
Aakil were apprehended on the spot. Upon a personal search of the
applicant/accused Nabi Alam, a polythene was recovered from the
pocket of the trousers worn by him. Inside the said polythene,
contraband Heroin weighing 250 grams was found; and similarly,
from the possession of Mohd. Aakil 50 grams of Heroin was
recovered. The samples of the seized contraband were sent to Forensic
Science Laboratory Division ('FSL') at Rohini, Delhi and the result so
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obtained confirmed the presence of di-acetyl-morphine in the samples.
On the basis of the aforesaid, Nabi Alam and Mohd. Aakil were
arrested and booked after registering First Information Report under
Sections 21 and 29 of the NDPS Act.
5. At the outset, it is observed that the application seeking bail
moved before the learned Session's Court, came to be dismissed víde
order dated 13.07.2018, on the ground of recovery of 'commercial
quantity' of the contraband from the possession of the
applicant/accused Nabi Alam.
6. Mr. Aldanish Rein, learned counsel appearing on behalf of the
applicant/accused Nabi Alam submits that he has been falsely
implicated in the present case and has been in judicial custody since
his arrest on 27.07.2017. It is the contention of the counsel for the
applicant/accused that the statutory stipulations as mandated under
Section 50 of NDPS Act have not been complied with in the present
case and that the prosecution has disregarded the sanctity of the
mandatory requirement in force.
7. Learned counsel for the applicant/accused Nabi Alam would
submit that the provision of Section 50 of the NDPS Act clearly and
unequivocally stipulates that the search of a person accused or
suspected of being in possession of any narcotic drug or psychotropic
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substance can only be conducted in the presence of a Gazetted Officer
or Magistrate, which mandatory stipulation, in the instant case, has
been observed only in its breach.
8. Learned counsel appearing on behalf of the applicant/accused
Nabi Alam also submits that he was asked to inscribe his signature on
blank papers at the time of his search conducted under Section 50 of
the NDPS Act by the empowered officers of prosecuting agency,
negating his statutory right to be searched only before a Gazetted
Officer or Magistrate.
9. Learned counsel appearing on behalf of the applicant/accused
would further submit that it is statutorily mandated that despite a
person accused or suspected of being in possession of any narcotic
drug or psychotropic substance waiving his right to be searched before
a Gazetted Officer or Magistrate after being apprised of his statutory
right in that behalf, it is still incumbent upon the prosecuting agency
and its empowered officers to mandatorily conduct his search before a
Gazetted Officer or Magistrate only, in order to be compliant with the
provisions of Section 50 of the NDPS Act.
10. In order to buttress and bolster his submission, Mr. Aldanish
Rein learned counsel appearing on behalf of the applicant/accused
Nabi Alam has placed reliance on series of judgements of this Court,
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as well as, the Hon'ble Supreme Court of India, which are elaborated
hereunder:-
1. Arif Khan @ Agha Khan vs. State of Uttarakhand
reported as AIR 2018 SCC 2123.
2. The State of Uttarakhand Vs. Arif Khan @ Agha Khan in
Review Petition (Criminal) No. 270 of 2019 in Criminal
Appeal No. 273/2007.
3. State of Punjab vs Baldev Singh reported as AIR 1999 SC
2378.
4. Karnail Singh vs State of Haryana reported as (2009) SCC
5. Vijaysinh Chandubha Jadeja vs State of Gujarat reported
as AIR 2011 SC 77.
6. Narcotics Control Bureau Vs Sukhdev Raj Sodhi reported
as AIR 2011 SC 1939.
7. State of Rajasthan Vs Parmanand & Anr reported as AIR
2014 SC 1384.
8. Delhi Airtech Services (P) Ltd., v. State of U.P., reported as
2011 (9) SCC 354.
9. G. K. Dudani v. S. D. Sharma reported as AIR 1986 SC
1455.
Judgment of Delhi High Court:
10. Innocent Uzoma Vs. State in Crl. A. 139/2017, decided on
14/01/2020.
11. Lai Babu @ Rajesh @ Raju Vs. GNCTD in Bail Appln.
No. 1766/2019, decided on 15/10/19.
12. Vaibhav Gupta vs. State in Bail Appln No. 2014/2019,
decided on 20/09/2019.
13. State Vs Vicky in CRL.L.P.143/2017, decided on 13/09/19
14. Sumit Rai @ Subodh Rai vs. State, in Crl. A. 578/2017
decided on 29/07/19.
15. Sikodh Mahto Vs. State in Crl. A. 660/2017, decided on
06/06/19.
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16. Sunny Khanna Vs. State in Bail Appln. No. 218/2019
decided on 25/04/19
17. Deepak Shamsher Thapa Vs. State, in Crl. A. 831/2014
decided on 08.01.2019
18. Gurtej Singh Bath Vs. State, in Crl. A. 39/2015 decided on
27.12.2018
19. Dharambir vs. State in Crl. A. 658/2017 decided on
13.11.2018
20. Deepak Singh vs. State, in Bail Appln. No. 1854/2017,
decided on 31/10/18
11. Per Contra, Mr. Rahul Mehra learned Standing Counsel
(Criminal) appearing on behalf of respondent-State would submit that
all statutory prescriptions and requirements have been scrupulously and
duly observed in the present case, in accordance with law, and that the
requirement of Section 50 of the NDPS Act, for the suspect to be
searched only before a Gazetted Officer or Magistrate, even though the
suspect waives that requisition, after categorically being apprised of his
right to be so searched, is not the stipulation of the provision. It is
further submitted that the applicant/accused was served with notice to
be searched under Section 50 of the NDPS Act, whilst simultaneously
being informed of his statutory right to be searched before a Gazetted
Officer or Magistrate, in response to which the applicant/accused
decided to waive the right by reposing faith in the empowered officer to
conduct his search; in complete accord with the stipulated and statutory
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requirements mandated by the provision of Section 50 of the NDPS
Act. It is further submitted that, applicant/accused was caught red-
handed in possession of 'commercial quantity' of contraband substance
Heroin weighing 250 grams, and committed heinous crime of drug-
trafficking, and warrants no leniency at this stage of trial.
12. Mr. Rahul Mehra, learned Standing Counsel (Criminal)
appearing on behalf of the respondent-State in support of his
submissions and contentions placed reliance on the various decisions
which are mentioned hereunder: -
1. State of Punjab vs Baldev Singh, reported as AIR 1999 SC
2378.
2. Vijaysinh Chandubha Jadeja vs State of Gujarat reported
as AIR 2011 SC 77.
3. Ashok Kumar Sharma vs State of Rajasthan, reported as
(2013) 2 SCC 67.
4. Raghbir Singh vs State of Harayana reported as AIR 1996
SC 2926.
5. Arif Khan @ Agha Khan vs. State of Uttarakhand reported
as AIR 2018 SC 2123.
6. [email protected] Hossain Vs. State of Orissa reported as
2010 (1) ACR 713 (SC).
7. Union of India vs Rattan Mallik @ Kabul reported as
(2009) 2 SCC 624.
8. Siddharam Satlingappa Mhetre v. State of Maharashtra
reported as AIR 2011 SC 312.
9. Sundeep Kumar Bafna v. State of Maharashtra reported as
AIR 2014 SC 1745.
10. State of Orissa vs Mohd. Illiyas. reported as AIR 2006 SC
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11. National Insurance Company ltd. vs Pranay Sethi reported
as AIR 2017 SC 5157.
12. Sandhya Educational Society vs Union of India reported as
(2015) (5) ALLMR 467.
Judgment of Delhi High Court:
1. Innocent Uzoma Vs. State in Crl. A. 139/2017 decided on
14/01/2020.
2. Anil SharmaVs. State in Bail App. No. 127/2019 decided
on 08/11/2019.
3. Shafi @ Lovely Vs. State in Bail App. No. 1493/2019
decided on 19/08/2019.
13. Having heard learned counsel appearing on behalf of the parties
and after due consideration of the rival submissions in the context
of the facts and circumstances on record, as well as, the relevant
provisions of law and the decisions relied upon by the parties, we
observe that the solitary question of law that arises for consideration
in the present case is: -
a) Whether even after a person accused or suspected of
being in possession of narcotic drug or psychotropic
substance is apprised by the empowered officer of his
statutory right to be required to be searched before a
Gazetted Officer or Magistrate, but expressly waives
compliance with the said requirement and relinquishes
his stipulated right, is it still mandatory for the
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prosecution to conduct his search only before a
Gazetted Officer or Magistrate?
14. Before we proceed to decide the issue struck, it is pertinent to
observe that stringent provisions of the NDPS Act cast a heavier duty
upon the prosecution, who enjoy extensive statutory powers, requiring
them to follow strictly and comply scrupulously with the safeguards
provided in the NDPS Act. There can be no quarrel with the
proposition that the intent of the legislature to include Section 50 of
the NDPS Act requiring the empowered officer to apprise the person
accused or suspected of being in possession of any narcotic drug or
psychotropic substance of his statutory right to be searched before a
Gazetted Officer or Magistrate was done with a view to impart
authenticity, transparency and creditworthiness to the proceedings
since the Magistrate axiomatically enjoys more confidence of the
common man in contrast to any officer of prosecuting agency.
15. It axiomatically follows, as conclusively opined by the
Constitutional Benches of the Hon'ble Supreme Court in Vijaysinh
Chandubha Jadeja (supra) and Baldev Singh (supra), that the right
of the person accused or suspected of being in possession of any
narcotic drug or psychotropic substance, to be informed of his
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statutory right to be searched before a Gazetted Officer or Magistrate,
if such person so requires, is mandatory.
16. In order to effectively adjudicate the issue before this Court, it is
considered necessary and profitable to extract the relevant provision of
the NDPS Act which reads as follows: -
Section 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.
(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
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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."
17. On a plain reading and harmonious interpretation of the above
extracted provision, it is evident that Section 50 of the NDPS Act
stipulates the conditions under and the manner in which the personal
search of a person accused or suspected of being in possession of any
narcotic drug or psychotropic substance is required to be conducted.
Upon delineation of provision of Section 50 of the NDPS Act, it is
observed that sub-Section (1) provides that when the empowered
officer is about to conduct the search of any suspected person, he
shall, "if the person to be searched so requires", take him to the
nearest Gazetted officer or the Magistrate for the said purpose. Sub-
section (2), stipulates that if such request is made by the suspected
person, the empowered officer who is to effectuate the search, may
detain the person accused or suspected of being in possession of any
narcotic drug or psychotropic substance until the latter can be
produced before such Gazetted Officer or the Magistrate. It is evident
that if the suspect expresses the desire to be taken to the Magistrate,
the empowered officer is restrained from effecting the search of the
person concerned. Sub-section (3) provides that when a person to be
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searched is brought before such Gazetted Officer or the Magistrate and
such Gazetted Officer or the Magistrate finds that there are no
reasonable grounds to conduct the search, he shall forthwith discharge
the person to be searched; otherwise he shall direct the search to be
made. Sub-sections (5) and (6) which were introduced in Section 50
NDPS Act by virtue of the Narcotics, Drugs and Psychotropic
Substances (Amendment) Act, 2001 enacted on 27.09.2001 and came
into effect from 02.10.2001; provided an option to the empowered
officer to search the person accused or suspected of being in
possession of any narcotic drug or psychotropic substance
notwithstanding the latter exercising his right to be searched only
before a Gazetted Officer or Magistrate, if the empowered officer has
reason to believe that it was not possible to take such person to be
searched before the nearest Gazetted Officer or Magistrate without the
possibility of the person parting with the possession of any narcotic
drugs, psychotropic substance or any controlled substance or article or
document. In terms of Sub-section (6) of Section 50 of the NDPS Act,
the empowered officer mandatorily required to record reasons for his
belief that it was necessary to search the person accused or suspected
of being in possession of any narcotic drug or psychotropic substance
without taking him to the nearest Gazetted Officer or Magistrate,
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within 72 hours of the search being conducted and a copy of the
reasons so recorded was mandatorily required to be sent by the
empowered officer to his immediate superior.
18. At this juncture, we must reiterate that the issue before us in
terms of the Referral Order is not about the general applicability of
Section 50 of the NDPS Act but is specifically to determine whether
even after a person accused or suspected of being in possession of
narcotic drug or psychotropic substance is apprised by the
empowered officer of his statutory right to be required to be searched
before a Gazetted Officer or Magistrate, but expressly waives
compliance with the said requirement and relinquishes his stipulated
right, it is still mandatory for the prosecution to conduct his search
only before a Gazetted Officer or Magistrate.
19. This issue, in our considered view, is no longer res-integra in
view of the decision of the Hon'ble Supreme Court in Baldev Singh
(supra) and Vijaysinh Chandubha Jadeja (supra), wherein it was
held as follows:-
"23. In the above background, we shall now advert to the
controversy at hand. For this purpose, it would be
necessary to recapitulate the conclusions, arrived at
by the Constitution Bench in Baldev Singh
case [(1999) 6 SCC 172 : 1999 SCC (Cri) 1080] . We
are concerned with the following conclusions: (SCC
pp. 208-10, para 57)
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"(1) That when an empowered officer or a duly
authorised officer acting on prior information is
about to search a person, it is imperative for him
to inform the person concerned of his right under
sub-section (1) of Section 50 of being taken to
the nearest gazetted officer or the nearest
Magistrate for making the search. However,
such information may not necessarily be in
writing.
(2) That failure to inform the person concerned
about the existence of his right to be searched
before a gazetted officer or a Magistrate would
cause prejudice to an accused.
(3) That a search made by an empowered officer, on
prior information, without informing the person
of his right that if he so requires, he shall be
taken before a gazetted officer or a Magistrate
for search and in case he so opts, failure to
conduct his search before a gazetted officer or a
Magistrate, may not vitiate the trial but would
render the recovery of the illicit article suspect
and vitiate the conviction and sentence of an
accused, where the conviction has been
recorded only on the basis of the possession of
the illicit article, recovered from his person,
during a search conducted in violation of the
provisions of Section 50 of the Act.
***
(5) That whether or not the safeguards provided in
Section 50 have been duly observed would have
to be determined by the court on the basis of the
evidence led at the trial. Finding on that issue,
one way or the other, would be relevant for
recording an order of conviction or acquittal.
Without giving an opportunity to the prosecution
to establish, at the trial, that the provisions of
Section 50 and, particularly, the safeguards
provided therein were duly complied with, it
would not be permissible to cut short a criminal
trial.
(6) That in the context in which the protection has
been incorporated in Section 50 for the benefit
of the person intended to be searched, we do not
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express any opinion whether the provisions of
Section 50 are mandatory or directory, but hold
that failure to inform the person concerned of his
right as emanating from sub-section (1) of
Section 50, may render the recovery of the
contraband suspect and the conviction and
sentence of an accused bad and unsustainable in
law.
(7) That an illicit article seized from the person of
an accused during search conducted in violation
of the safeguards provided in Section 50 of the
Act cannot be used as evidence of proof of
unlawful possession of the contraband on the
accused though any other material recovered
during that search may be relied upon by the
prosecution, in other proceedings, against an
accused, notwithstanding the recovery of that
material during an illegal search."
(emphasis in original)
24. Although the Constitution Bench in Baldev Singh
case [(1999) 6 SCC 172 : 1999 SCC (Cri) 1080] did
not decide in absolute terms the question whether or
not Section 50 of the NDPS Act was directory or
mandatory yet it was held that provisions of sub-
section (1) of Section 50 make it imperative for the
empowered officer to "inform" the person concerned
(suspect) about the existence of his right that if he so
requires, he shall be searched before a gazetted officer
or a Magistrate; failure to "inform" the suspect about
the existence of his said right would cause prejudice
to him, and in case he so opts, failure to conduct his
search before a gazetted officer or a Magistrate, may
not vitiate the trial but would render the recovery of
the illicit article suspect and vitiate the conviction and
sentence of an accused, where the conviction has been
recorded only on the basis of the possession of the
illicit article, recovered from the person during a
search conducted in violation of the provisions of
Section 50 of the NDPS Act. The Court also noted
that it was not necessary that the information required
to be given under Section 50 should be in a prescribed
form or in writing but it was mandatory that the
suspect was made aware of the existence of his right
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to be searched before a gazetted officer or a
Magistrate, if so required by him. We respectfully
concur with these conclusions. Any other
interpretation of the provision would make the
valuable right conferred on the suspect illusory and a
farce.
xxxx xxxx xxxx
xxxx xxxx xxxx
27. It can, thus, be seen that apart from the fact that
in Karnail Singh [(2009) 8 SCC 539 : (2009) 3 SCC
(Cri) 887] , the issue was regarding the scope and
applicability of Section 42 of the NDPS Act in the
matter of conducting search, seizure and arrest
without warrant or authorisation, the said decision
does not depart from the dictum laid down in Baldev
Singh case [(1999) 6 SCC 172 : 1999 SCC (Cri)
1080] insofar as the obligation of the empowered
officer to inform the suspect of his right enshrined in
sub-section (1) of Section 50 of the NDPS Act is
concerned. It is also plain from the said paragraph that
the flexibility in procedural requirements in terms of
the two newly inserted sub-sections can be resorted to
only in emergent and urgent situations, contemplated
in the provision, and not as a matter of course.
Additionally, sub-section (6) of Section 50 of the
NDPS Act makes it imperative and obligatory on the
authorised officer to send a copy of the reasons
recorded by him for his belief in terms of sub-section
(5), to his immediate superior officer, within the
stipulated time, which exercise would again be
subjected to judicial scrutiny during the course of
trial.
28. We shall now deal with the two decisions, referred to
in the referral order, wherein "substantial compliance"
with the requirement embodied in Section 50 of the
NDPS Act has been held to be sufficient. In Prabha
Shankar Dubey [(2004) 2 SCC 56 : 2004 SCC (Cri)
420] a two Judge Bench of this Court culled out the
ratio of Baldev Singh case [(1999) 6 SCC 172 : 1999
SCC (Cri) 1080] on the issue before us, as follows:
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(Prabha Shankar Dubey case [(2004) 2 SCC 56 :
2004 SCC (Cri) 420] , SCC p. 64, para 11)
"11. ... What the officer concerned is required to do is
to convey about the choice the accused has. The
accused (suspect) has to be told in a way that he
becomes aware that the choice is his and not of
the officer concerned, even though there is no
specific form. The use of the word 'right' at
relevant places in the decision of Baldev Singh
case (1999) 6 SCC 172 seems to be to lay
effective emphasis that it is not by the grace of
the officer the choice has to be given but more
by way of a right in the 'suspect' at that stage to
be given such a choice and the inevitable
consequences that have to follow by
transgressing it."
However, while gauging whether or not the
stated requirements of Section 50 had been met
on facts of that case, finding similarity in the
nature of evidence on this aspect between the
case at hand and Joseph Fernandez [(2000) 1
SCC 707 : 2000 SCC (Cri) 300] the Court chose
to follow the views echoed in the latter case,
wherein it was held that the searching officer's
information to the suspect to the effect that "if
you wish you may be searched in the presence
of a gazetted officer or a Magistrate" was in
substantial compliance with the requirement of
Section 50 of the NDPS Act. Nevertheless, the
Court indicated the reason for use of expression
"substantial compliance" in the following
words: (Prabha Shankar Dubey case [(2004) 2
SCC 56 : 2004 SCC (Cri) 420] , SCC p. 64, para
12)
"12. The use of the expression 'substantial
compliance' was made in the background that
the searching officer had Section 50 in mind and
it was unaided by the interpretation placed on it
by the Constitution Bench in Baldev Singh
case [(1999) 6 SCC 172 : 1999 SCC (Cri) 1080]
. A line or a word in a judgment cannot be read
in isolation or as if interpreting a statutory
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provision, to impute a different meaning to the
observations."
It is manifest from the afore-extracted paragraph
that Joseph Fernandez [(2000) 1 SCC 707 :
2000 SCC (Cri) 300] does not notice the ratio
of Baldev Singh [(1999) 6 SCC 172 : 1999 SCC
(Cri) 1080] and in Prabha Shankar
Dubey [(2004) 2 SCC 56 : 2004 SCC (Cri) 420]
, Joseph Fernandez [(2000) 1 SCC 707 : 2000
SCC (Cri) 300] is followed ignoring the dictum
laid down in Baldev Singh case [(1999) 6 SCC
172 : 1999 SCC (Cri) 1080]
29. In view of the foregoing discussion, we are of the firm
opinion that the object with which the right under
Section 50(1) of the NDPS Act, by way of a
safeguard, has been conferred on the suspect viz. to
check the misuse of power, to avoid harm to innocent
persons and to minimise the allegations of planting or
foisting of false cases by the law enforcement
agencies, it would be imperative on the part of the
empowered officer to apprise the person intended to
be searched of his right to be searched before a
gazetted officer or a Magistrate. We have no
hesitation in holding that insofar as the obligation of
the authorised officer under sub-section (1) of Section
50 of the NDPS Act is concerned, it is mandatory and
requires strict compliance. Failure to comply with the
provision 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 accused during such
search. Thereafter, the suspect may or may not
choose to exercise the right provided to him under
the said provision."
20. On a plain reading of the above decision, it is clear that the
obligation of the empowered officer under sub-Section (1) of Section
50 of the NDPS Act makes it imperative on his part to apprise the
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person intended to be searched, of his right to be searched before a
Gazetted Officer or Magistrate; failure to comply with which
prescription, which requires strict compliance, would render the
recovery of the 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 accused during such search or suspected of
being in possession of any narcotic drug or psychotropic substance
during the said search. However, for the purposes of the issue to be
determined in the instant case, it is relevant and pertinent to note that
the Constitution Bench of the Hon'ble Supreme Court of India in
Vijaysinh Chandubha Jadeja (supra) clearly observed that
"Thereafter, the suspect may or may not choose to exercise the right
provided to him under the said proviso". The sequitur to this
observation of the Supreme Court leaves no manner of doubt that once
the suspect has been apprised by the empowered officer of his right to
be searched before a Gazetted Officer or a Magistrate, but chooses not
to exercise that right, the empowered officer can conduct the search of
such person without producing him before a Gazetted Officer or a
Magistrate, for the said purpose.
21. Coming now to the emphasis placed on behalf of the
applicant/accused on the judgment rendered by the Supreme Court in
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Arif Khan @ Agha Khan (supra), the question that needs to be
considered is whether that decision is an authority for the proposition
that notwithstanding the person proposed to be searched has, after
being duly apprised of his right to be searched before a Gazetted
Officer or Magistrate, but has expressly waived this right in clear and
unequivocal terms; it is still mandatory that his search be conducted
only before a Gazetted Officer or Magistrate.
22. In this behalf, it is necessary to consider the observations of the
Hon'ble Supreme Court in Arif Khan @ Agha Khan (supra), the
relevant paragraphs of which decision are being extracted
hereinbelow: -
"18. What is the true scope and object of Section 50 of the
NDPS Act, what are the duties, obligation and the
powers conferred on the authorities under Section 50
and whether the compliance of requirements of
Section 50 are mandatory or directory, remain no
more res integra and are now settled by the two
decisions of the Constitution Bench of this Court
in State of Punjab v. Baldev Singh [State of
Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999
SCC (Cri) 1080] and Vijaysinh Chandubha
Jadeja [Vijaysinh Chandubha Jadeja v. State of
Gujarat, (2011) 1 SCC 609] .
19. Indeed, the latter Constitution Bench decision
rendered in Vijaysinh Chandubha Jadeja (supra) has
settled the aforementioned questions after taking into
considerations all previous case law on the subject.
20. Their Lordships have held in Vijaysinh Chandubha
Jadeja that the requirements of Section 50 of the
NDPS Act are mandatory and, therefore, the
provisions of Section 50 must be strictly complied
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with. It is held that it is imperative on the part of the
police officer to apprise the person intended to be
searched of his right under Section 50 to be
searched only before a gazetted officer or a
Magistrate. It is held that it is equally mandatory on
the part of the authorised officer to make the suspect
aware of the existence of his right to be searched
before a gazetted officer or a Magistrate, if so
required by him and this requires a strict
compliance. It is ruled that the suspect person may
or may not choose to exercise the right provided to
him under Section 50 of the NDPS Act but so far as
the officer is concerned, an obligation is cast upon
him under Section 50 of the NDPS Act to apprise the
suspect of his right to be searched before a gazetted
officer or a Magistrate."
23. A plain reading of the above extracted paragraphs leads to but
one inescapable conclusion that their Lordships of the Hon'ble
Supreme Court whilst following the ratio of the decision of the
Constitution Bench in Vijaysinh Chandubha Jadeja (supra) held that
the same has settled the position of law in this behalf to the effect that,
whilst it is imperative on the part of the empowered officer to apprise
the person of his right to be searched only before a Gazetted Officer or
Magistrate; and this requires a strict compliance; the Hon'ble Court
simultaneously proceeded to reiterate that, in Vijaysinh Chandubha
Jadeja (supra) "it is ruled that the suspect person may or may not
choose to exercise the right provided to him under Section 50 of the
NDPS Act". In this view of the matter, the reliance placed by counsel
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for the applicant/accused on the decision of the Supreme Court in Arif
Khan @ Agha Khan (supra), in our respectful view does not come to
his aid.
24. Having considered the case law on the subject, we are inclined to
answer the Reference in the following manner.
25. In view of the discussion in the foregoing paragraphs, we answer
the issue that arises for consideration in the present Reference in the
negative.
26. For the sake of clarity it is held that, axiomatically, there is no
requirement to conduct the search of the person, suspected to be in
possession of a narcotic drug or a psychotropic substance, only in the
presence of a Gazetted Officer or Magistrate, if the person proposed to
be searched, after being apprised by the empowered officer of his right
under Section 50 of the NDPS Act to be searched before a Gazetted
Officer or Magistate categorically waives such right by electing to be
searched by the empowered officer. The words "if such person so
requires", as used in Section 50(1) of the NDPS Act would be
rendered otiose, if the person proposed to be searched would still be
required to be searched only before a Gazetted Officer or Magistrate,
despite having expressly waived "such requisition", as mentioned in
the opening sentence of sub-Section (2) of Section 50 of the NDPS
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Act. In other words, the person to be searched is mandatorily required
to be taken by the empowered officer, for the conduct of the proposed
search before a Gazetted Officer or Magistrate, only "if he so
requires", upon being informed of the existence of his right to be
searched before a Gazetted Officer or Magistrate and not if he waives
his right to be so searched voluntarily, and chooses not to exercise the
right provided to him under Section 50 of the NDPS Act.
27. The Bail Application No.2641/2018 and Criminal M. (Bail)
No.555/2021 seeking interim bail be listed before the learned Single
Judge for further proceedings, in accordance with law on 06.07.2021.
28. Copies of this Judgment be provided to the learned counsel
appearing on behalf of the parties electronically and be also uploaded
on the website of this Court forthwith.
SIDDHARTH MRIDUL
(JUDGE)
TALWANT SINGH
(JUDGE)
JUNE 04, 2021
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