Compliance of Section 50 of NDPS Act Mandatory

Compliance of Section 50 NDPS Act is Mandatory

Supreme Court considered the question whether Section 50 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act)casts a duty on the empowered officer to inform the suspect of his right to be searched in the presence of a gazetted officer or a Magistrate, if he so desires 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 be due compliance with the mandate of the said section. The Constitution Bench held that although Baldev Singh did not decide in absolute terms the question whether or not Section 50 of the Narcotic Drugs and Psychotropic Substances Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 makes it imperative for the empowered officer to inform the person concerned 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 Narcotic Drugs and Psychotropic Substances Act. The Constitution Bench noted that in Baldev Singh, it was clarified 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 to be searched before a gazetted officer or a Magistrate, if so required by him. The Constitution Bench reiterated the principles laid down by this court in Baldev Singh and added that the concept of substantial compliance with the requirement of Section 50 of the Narcotic Drugs and Psychotropic Substances Act is neither borne out from the language of Section 50(1) nor it is in consonance with the dictum laid down in Baldev Singh. Thus, it is no longer in dispute that strict compliance with the provisions of Section 50(1) of the Narcotic Drugs and Psychotropic Substances Act is necessary. We need to see whether evidence adduced in this case establishes that there was strict compliance of Section 50(1) of the Narcotic Drugs and Psychotropic Substances Act.

Effect of Non-compliance of section 50 of NDPS Act in Chance recovery

In a case titled Jaspal singh alias pala V. State, Hon’ble High court acquitted the accused who convicted by the lower court on the ground of non-compliance of the section 50 of NDPS Act by the police and give the finding in the case “I find that the case of the prosecution is that on seeing the Police party, the accused sat down as he was urinating or he was passing urine. He took out the polythene from the left pocket of his pant and tried to throw away a polythene bag in the fields, but was apprehended by SI( Sub-inspector). In the present case, it looks that the recovery had been effected from the hand of the accused, who brought out the polythene bag from the pocket and tried to throw away in the field and in the meantime he was apprehended. No offer had been given under section 50 of the NDPS Act to get his personal search conducted. It is not the case of the prosecution that intoxicant powder had been recovered from some vehicle or some brief case or `Jhola or bag etc. The intoxicant powder as per prosecution version was in the pocket and the accused took out the same from the left pocket of his pant and tried to throw away. Therefore, in the facts and circumstances of the present case, it is clear that this recovery had been effected from the hands of the accused, which will amount to recovery from the search of the person of the accused. The provisions of section 50 of the NDPS Act are mandatory in nature which has not been complied with by the Investigating Officer and only on this ground the accused is entitled to acquittal. No offer of any type had been given to the accused qua his personal search.

Conclusion –

At the time of personal search of the accused compliance of the section 50 of NDPS Act is mandatory.