LI Network
Published on: October 7, 2023 at 15:30 IST
The Supreme Court has provided a summary of principles related to Section 50 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), which delineates the conditions under which searches of individuals may be carried out.
A bench consisting of Justices MM Sundresh and JB Pardiwala, encapsulated the principles as follows:
(i) Section 50 confers both a right and an obligation. The individual to be searched has the right to request that their search be conducted in the presence of a Gazetted Officer or Magistrate, and it is the duty of the police officer to inform the suspect of this right before proceeding with the search.
(ii) If the individual being searched declines to exercise this right, the police officer may proceed with the search. However, if the suspect chooses not to exercise their right to be searched before a Gazetted Officer or Magistrate, the empowered officer should obtain a written statement from the suspect, indicating their refusal to exercise this right, and allow the empowered officer to conduct the search.
(iii) Before conducting a search, it is imperative to communicate clearly, either orally or in writing, that the suspect has the right to be searched by a Gazetted Officer or Magistrate.
(iv) When informing the suspect of this right, only two options must be presented: either to be searched in the presence of a Gazetted Officer or Magistrate, who must also be independent and not connected to the raiding party.
(v) In the case of multiple persons to be searched, each individual must be informed individually of their right, and each must decide to exercise or waive it independently. Any joint or collective communication of this right would contravene Section 50.
(vi) When the right under Section 50 has been exercised, it is at the discretion of the police officer to determine whether to take the suspect before a Gazetted Officer or Magistrate, but every effort should be made to take the suspect before the nearest Magistrate.
(vii) Section 50 applies exclusively to searches of individuals suspected of NDPS Act offenses and does not apply when a search is conducted under any other statute for a different offense.
(viii) If during a search conducted under any statute other than the NDPS Act, contraband under the NDPS Act is discovered, NDPS Act provisions will immediately apply. In such situations, compliance with Section 50 may not be required since the search has already taken place.
(ix) The burden of proof rests with the prosecution to demonstrate that the obligations imposed by Section 50 were properly adhered to before the search was executed.
(x) Any incriminating contraband, possession of which is punishable under the NDPS Act and discovered in violation of Section 50, is inadmissible and cannot be used as evidence in the prosecution’s trial. However, this will not invalidate the trial for other charges. Other seized items may be used in separate proceedings.
Case Title: Ranjan Kumar Chadha v. State of Himachal Pradesh
