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Not Necessary to conduct search under Section 50 NDPS Act before Gazetted officer/Magistrate: Delhi HC

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Delhi High Courts dismissed an appeal filed by accused who has challenged his conviction under the NDPS Act by trial court stating that the search conducted by Police officers was not in compliance with the provision under section 50 of NDPS Act as it was not conducted in the presence of Gazatted Officer/Magistrate.

Foreign National ‘Innocent’ was guilty of being found in possession of 25 grams of Cocaine and convicted by trial court under Section 21 (b) of the Narcotics, Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo 4 year imprisonment. He was also found guilty under Section 14 (a) of Foreigners Act, 1946 as his visa was expired and sentenced to undergo 3 years imprisonment.

He has challenged his conviction before the Delhi High Court on ground that the search conducted by Police officers was not in compliance with the provision under section 50 of NDPS Act as it was not conducted in the presence of Gazatted Officer/Magistrate.

Justice Vibhu Bakhru Delhi High Court has held, “Given the scheme of Section 50 of the NDPS Act, it is difficult to accept that notwithstanding that a suspect must be searched only before a magistrate/Gazetted officer, even though he does not so require, after he is apprised of his rights in this regard.”

According to the prosecution when the accused was apprehended, Sub Inspector Shivdarshan informed the accused about his legal right to be searched before a Gazetted Officer or a Magistrate. A notice was also prepared under Section 50 of NDPS Act and the carbon copy of the same was given to the accused. Since the accused was illiterate, SI Shivdarshan reads the content of the same to the accused. The accused’s refusal was written on the said notice.

Delhi High Court said, “If Section 50(1) of NDPS Act is read to mean that it is necessary in all cases that a search be conducted before a Magistrate or a Gazetted Officer there would be no purpose in informing the suspect of his right to be searched before such officers. The entire object of informing the suspect who is proposed to be searched about his/her rights is to enable him to exercise this right – the right to be searched before a Magistrate or a Gazette Officer.

The major legal question that was posed before the court was whether there was non-compliance of the provisions of Section 50 of the NDPS Act as the appellant was not searched before a Magistrate or a Gazetted Officer. It was contended on behalf of the appellant that it was imperative that the search be conducted before a Magistrate or a Gazetted Officer and failure to do so rendered the appellant liable to be acquitted.

The court referred to the Section 50(1) of the NDPS Act, which reads as follows:

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.

The court stated that “Whilst it is clear that the authorized officer is required to take the person concerned to the nearest Magistrate/Gazetted Officer if the person so requires; it is difficult to interpret Section 50(1) of the NDPS Act to read that it is mandatory that in all cases, search must be conducted before a Gazetted Officer or a Magistrate.”

Court said while dismissing the appeal, “that the prosecution has established that the appellant/accused was apprised of his right to be searched before a Magistrate or a Gazetted Officer but he did not require that his search be conducted before the said person.”

-India Legal Bureau

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