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Interpretation of sec 50 ndps act
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Interpretation of sec 50 ndps act

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  • 1. Judicial Interpretation of Section 50 in “The Narcotic Drugs And Psychotropic Substances Act”, 1985 - by Ronak Karanpuria150. 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 theprovisions of Section 42 or Section 43, he shall, if such person as requires, take such personwithout unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned inSection 41, 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 theGazetted 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 seesno reasonable ground for search, forthwith discharge the person but otherwise shall direct thatsearch be made.(4) No female shall be searched by anyone excepting a female.[(5) When an officer duly authorised under section 42 has reason to believe that it is not possible totake the person to be searched to the nearest Gazetted Officer or Magistrate without the possibilityof 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 nearestGazetted Officer or Magistrate, proceed to search the person as provided under section 100 of theCode of Criminal Procedure, 1973.(6) After a search is conducted under sub-section (5), the officer shall record the reasons for suchbelief which necessitated such search and within seventy-two hours send a copy thereof to hisimmediate official superior.]2Vijaysinh Chandubha Jadeja vs State Of Gujarat [(2011) 1 SCC 609]Bench: D.K. Jain, B. Sudershan Reddy, Mukundakam Sharma, R.M. Lodha, Deepak VermaFact in Issue: Question arising for consideration in this batch of appeals is whether Section 50 ofthe Narcotic Drugs and Psychotropic Substances Act, 1985 (for short &”NDPS”) casts a duty on theempowered officer to `inform the suspect of his right to be searched in the presence of a GazettedOfficer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whetherthe suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can besaid to be due compliance with the mandate of the said Section?Held: In our opinion, the insertion of these two sub-sections [subsection (5)& (6) of Sec-50] doesnot obliterates the mandate of sub-section (1) of Section 50 to inform the person, to be searched, ofhis right to be taken before a gazetted officer or a Magistrate…………………It is also plain from the said paragraph that the flexibility in procedural requirements in terms of thetwo 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.We are of the firm opinion that the object with which 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, toavoid harm to innocent persons and to minimise the allegations of planting or foisting of false casesby the law enforcement agencies, it would be imperative on the part of the empowered officer to1 st 1 Year LL.M., NLSIU Bangalore2 Inserted by Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001, w.e.f. 2-10-2001 videSO 957 (E), dt. 27-9-2001. Page 1 of 3
  • 2. apprise the person intended to be searched of his right to be searched before a gazetted officer or aMagistrate.“We have no hesitation in holding that in so far as the obligation of the authorised officerunder sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory andrequires a strict compliance. Failure to comply with the provision would render therecovery of the illicit article suspect and vitiate the conviction if the same is recorded onlyon the basis of the recovery of the illicit article from the person of the accused during suchsearch. Thereafter, the suspect may or may not choose to exercise the right provided tohim under the said provision”The State Of Punjab vs Baldev Singh3 1999( 3 )SCR 977BENCH: A.S. Anand CJI, S.B.Majumdar, Sujata V.Manohar, K. Venkataswami & V. N. KhareFact in Issue:(i) Is it the mandatory requirement of Section 50 of the Narcotic Drugs and PsychotropicSubstances Act, 1985, (Act for short) that when an officer, duly authorised under Section 42 of theAct, is about to search a person he must inform him of his right under sub- section (1) thereof ofbeing taken to the nearest Gazetted Officer or nearest Magistrate for making the search?(ii) If any search is made without informing the person of his right would the search be illegal evenif he does not of his own exercise his right under Section 50(1)? And(iii) Whether a trial held in respect of any recovery of contraband articles pursuant to such a searchwould be void ab initio?Held: (1) That when an empowered officer or a duly authorised officer acting on prior informationis about to search a person, it is imperative for him to inform the person concerned of his rightunder sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearestMagistrate 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 searchedbefore 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 theperson of his right that if he so requires, he shall be taken before a gazetted officer or a Magistratefor search and in case he so opts, failure to conduct his search before a gazetted officer or aMagistrate, may not vitiate the trial but would render the recovery of the illicit article suspect andvitiate the conviction and sentence of an accused, where the conviction has been recorded only onthe basis of the possession of the illicit article, recovered from his person, during a search conductedin violation of the provisions of Section 50 of the Act.(4) That in the context in which the protection has been incorporated in Section 50 for the benefit ofthe person intended to be searched, we do not express any opinion whether the provisions ofSection 50 are mandatory or directory, but, hold that failure to inform the concerned person of hisright as emanating from Sub-section (1) of Section 50, may render the recovery of the contrabandsuspect and the conviction and sentence of an accused bad and unsustainable in lawMadan Lal And Anr. vs State Of Himachal Pradesh4 AIR 2003 SC 3642A bare reading of Section 50 shows that it only applies in case of personal search of a person. Itdoes not extend to search of a vehicle or a container or a bag, or premises. (See Kalama Tumba v.State of Maharashtra and Anr. , The State of Punjab v. Baldev Singh (JT 1999 (4) SC 595), GurbaxSingh v. State of Haryana (2001 (3) SCC 28). The language of Section 50 is implicitly clear that thesearch has to be in relation to a person as contrasted to search of premises, vehicles or3 Equivalent citations: 1999 AIR 2378 , 1999( 3 )SCR 977, 1999( 6 )SCC 1724 Equivalent citations: AIR 2003 SC 3642, 2003 (2) ALD Cri 688, 2003 CriLJ 3868 Page 2 of 3
  • 3. articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singhs case(supra). Above being the position, the contention regarding non-compliance of Section 50 of theAct is also without any substance.Joseph Fernandez v. State of Goa, 2001 (1) SCC p.707,A Bench of three Honble Judges held that even when the searching officer informed him that &”ifyou wish you may be searched in the presence of a gazetted officer or a Magistrate & “it was heldthat it was in substantial compliance with the requirement of Section 50 of the NDPS Act, and theCourt observed that it did not agree with the contention that there was non-compliance of themandatory provisions contained in Section 50 of the NDPS Act.Prabha Shankar Dubey Vs. State of M.P. 2004(2) SCC p.56,The following information was conveyed to the accused “By way of this notice, you are informedthat we have received information that you are illegally carrying opium with you, therefore, we arerequired to search your scooter and you for this purpose. You would like to give me search or youwould like to be searched by a gazetted officer or by a Magistrate”. This was held to be substantialcompliance of Section 50 of the NDPS Act.KrishanKanwar(Smt.)Alias Thakuraeen v. State of Rajasthan, 2004(2) SCC p.608,The same question was considered and it was held that there is no specific form prescribed orinitiated for conveying the information required to be given under Section 50 of the NDPS Act andit was held that “what is necessary is that the accused (suspect) should be made aware of theexistence of his right to be searched in the presence of one of the officers named in the sectionitself. Since no specific mode or manner is prescribed or intended, the court has to see the substanceand not the form of intimation. Whether the requirement of Section 50 have been met is a questionwhich is to be decided on the facts of each case and there cannot be any sweeping generalizationand/or a straitjacket formula”.T.T. Haneefa vs State Of Kerala5 AIR 2004 SC 3316The plain reading of Section 50 of NDPS Act does not show that the accused has got a right ofoption either a gazetted officer or the Magistrate, rather the option is for the officer who conductsthe search. Section 50 of the NDPS Act relevant portion reads as follows: "any officer dulyauthorised 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 unnecessarydelay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to thenearest Magistrate…………….. It is pertinent to note that the nature or option given to the accusedby the searching officer and the facts show that in that case the inquiry was made by the searchingofficer as to whether the accused would like to meet any higher officer or a gazetted officer and theaccused replied in negative. ……………………………………………... In the instant case, we donot think there is any violation of Section 50 of NDPS Act, as the accused was given the right to besearched in the presence of a Magistrate as he failed to opt for that we do not think that there wasany procedural illegalityState of Punjab v. Balbir Singh (1994 (3) SCC 299)A two-Judge Bench of this Court held that the above section is mandatory and it is obligatory on thepart of the officer concerned to inform the person to be searched of his right to demand that thesearch be conducted in the presence of a Gazetted Officer or a Magistrate. It was further held thatnon-compliance with the above section would affect the prosecution case and vitiate the trial.5 Equivalent citations: 2004 CriLJ 2853, 2004 (94) ECC 199, AIR 2004 SC 3316 Page 3 of 3

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