Ambit of Section 50 NDPS Act– Critique whether there is a need to re-determine the ambit

By: Ishan Kapoor, Advocate Supreme Court of India 


The Hon’ble Supreme Court of India recently in Tofan Singh v. State of Tamil Nadu held that officers of the Central and State agencies appointed under Narcotic Drugs and Psychotropic Substances Act are police officers and therefore the confessional statements recorded by them under Section 67 of the Act are not admissible. In light of the aforesaid development in the opinion of author it becomes imperative to analysis the ambit of section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985.

Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 provides the conditions under which search of person shall be conducted. The section provides that if a search of a person has to be made under the act, then such person has to be searched in presence of a Gazetted Officer or before a magistrate if such person desires so. In other words,it is the duty of the officer to inform the person who is going to be searched about his right to be searched before a gazetted officer or magistrate and if the person seeks to use his right then he needs to be taken to the nearest magistrate or gazetted officer as per the requisition made by him. The rationale behind the provision is that the search before a gazette officer or a magistrate would impart much more authenticity and credit worthiness.  In order to ensure that the section is implemented in its true letter and spirit it is of utmost importance to determine what would be included in personal search and what would be outside the ambit of personal search in terms of section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985. 

Analysis of Judicial Precedent

State of Punjab v. Baldev Singh [(1996) 6 SCC 172] – A sacrosanct and indefeasible provision  

In the case of Pooran Mal [(1974) 1 SCC 345] it was held that where the test of admissibility of evidence lay on relevancy, unless there was an express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure was not liable to be shut out. The Supreme Court relying upon the judgment of Pooran Mal in the case of State of H.P v. Pirthi Chand and in State of Punjab v.  Labh Singh held that evidence collected in violation of section 50 would not become inadmissible.  While in the case of State of Punjab v. Balbir Singh, Ali Mustaffa Abdul Rahman Moosa v. State of Kerala among other cases it was laid down that failure to observe safeguards as provided by section 50 would render the conviction of an accused illegal.In view of the fact that there was divergence of opinion between different benches of the Hon’ble Supreme Court the Constitution Bench was constituted. The Constitution bench held that as personal search under the act is critical means of obtaining evidence of possession it is therefore, necessary that the safeguards provided in section 50 are observed scrupulously. It was further held that non-compliance with the provision of section 50 would render the conviction of such an accused unsustainable.  The Constitution bench held that the judgment of Pooran Mal cannot be applied in case of NDPS act and specifically in relation to provisions of section 50 of the act. It was further held that a presumption under section 54 of the act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of section 50.  It was therefore, held by the Constitution bench that an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in section 50 cannot by itself be used as admissible evidence. 

• Articles carried along don’t form part of person of an accused hence provisions of section 50 of Narcotic Drugs and Psychotropic Substances Act not applicable.1. State of Himachal Pradesh v. Pawan Kumar [(2005) 4 SCC 350] 

Three Judge bench of Hon’ble Supreme Court of India in this case adjudicated whether the safeguards provided by Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 regarding search of any person would also apply to bag, or any similar article which is being carried by such person. The Hon’ble High Court in this case had held that as provisions of section 50 had not been complied with while conducting the search of the bag therefore, recovery of opium from the possession of the accused was not established and respondent’s conviction was set aside. Definition of person in various enactments was considered by the bench, the bench apart from statutes also considered the definition of word person in various dictionaries. After considering various definitions Supreme Court held that word person would mean a human being with appropriate coverings and clothing including footwear. The Hon’ble three judge bench further held that bag and similar articles can under no circumstance be treated as body of human being. A person depending upon his physical capacity carries such articles and for carrying such articles extra effort and energy is required, it was therefore held that it is not possible to include such articles within the ambit of person as occurring in section 50 of the act. 

The Judgment rendered in Pawan Kumar has been subsequently followed in many cases to hold that articles carried along are not covered within the ambit of section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 {State of Haryana v. Mairam [(2008) 8 SCC 292], Ajmer Singh v. State of Haryana [(2010) 3 SCC 746], Kashmiri Lal v. State of Haryana [(2013) 6 SCC 595],Ram Swaroop v. State (Government of NCT of Delhi) [(2013) 14 SCC 235]}. The said view has recently been adopted by the Supreme Court in the case of Jeet Ram v. Narcotics Control Bureau, Chandigarh (criminal appeal No. 688 of 2013) 

• Interpreting ambit of section 50 of Narcotic Drugs and Psychotropic Substances Act differently 1) Dilp & another v. State of Madhya Pradesh [(2007) 1 SCC 450]

In this case, two people were apprehended, while they were crossing the police station on a scooter at a fast speed, on their personal search nothing was recovered but on search of the scooter plastic bags were recovered which contained opium.  The Sessions Court had acquitted the accused person, High Court while hearing the appeal preferred by the Prosecuting agency reversed the judgment of Sessions Court, accused persons preferred an appeal to Supreme Court which was admitted and heard. The Supreme Court held that provisions of section 50 might not have been required to be complied with so far as the search of scooter was concerned but in view of the fact that the person of the accused was also searched it was obligatory on part of the prosecution agency to comply with the provisions of section 50 of the act.

2) Union of India v. Shah Alam & another [(2009) 16 SCC 644]

In this case, accused persons were apprehended, on search heroin was recovered from the shoulder bag,carried by the accused persons. The Sessions Court convicted the accused persons, in appeal the High Court set aside the judgment of trial court on the ground that provision of section 50 was not adhered properly. The Supreme Court held that from evidence it is evident that the accused persons were subjected to body search in course of which heroin was recovered from the shoulder bags carried by accused persons and relying upon the judgment of Dilip (Supra) it was held that recovery of heroin was made in violation of provisions of section 50 and thereby upheld the judgment of High Court which had set- aside the conviction of the accused persons. 

3) State of Rajasthan v. Parmanand & another [(2014) 5 SCC 345]

In this case when the accused persons were apprehended and search was conducted a polyethene bag was recovered from the bag that was being carried by Parmanand, inside the polyethene bag was opium. The special judge convicted the accused persons, on appeal the High Court acquitted the accused persons on the ground that there was noncompliance with the provisions of section 50 of the act. The Supreme Court held that if merely a bag carried by a person is searched without there being any search of his person section 50 will have no application but if the bag as well as body of suspect is searched section 50 will have application. The Court held that in the present case section 50 will be applicable. 

4) S.K Raju v. State of West Bengal [(2018) 9 SCC 708] 

In this case, Sessions Court convicted the accused, the said conviction was upheld by the High Court against the said judgment appeal was filed before the Supreme Court which was admitted and heard by a three judges’ bench. In the said case the search of the accused was conducted in presence of gazette officer. On search charas was recovered from black polythene packet which was inside the jute bag which was being carried by the accused person. The bench pondered upon the judgments rendered in Parmanand (Supra) and Dilip (Supra) and held that since search conducted was not only of the bag which the accused was carrying but also involved search of the person of the accused section 50 would be attracted and would be applicable. In facts of the case as both search of the person and bag was conducted in presence of gazette officer, bench held that compliance had been made with the provisions of section 50 and dismissed the appeal.

Concluding Remarks 

On reading of the various judgments of the Supreme Court it is unambiguously clear that compliance with provisions of section 50 is necessary. The ambit of the provision is yet not unambiguously clear as to whether articles carried by the accused person would attract provisions of the section 50 or not. A three-judge bench in Pawan Kumar (Supra) has held that articles carried by the person would not form part of search as provided in section 50, but a three-judge bench in S.K Raju (Supra) has held that where both an article carried by accused and his person is searched provisions of section 50 would be applicable. Hence there is a need to bring clarity on the ambit of what would be included in the search as per section 50 and therefore in the opinion of the author a larger bench should examine whether articles carried by accusedwould also be covered by the provision in case of person of accused is searched in view of the fact that there is some difference of opinion between two different three- judges’ bench of the Supreme Court of India.

The author is a Supreme Court Advocate.