Section 50 NDPS Applies Even When the Searching Officer Is a Gazetted Officer: Supreme Court

The Additional Sessions Judge, Mahsana, convicted the appellant under Section 20-B(2) of the NDPS Act for possessing about 9 grams of charas on 10.5.1992 and sentenced him to ten years' rigorous imprisonment and a fine of one lakh rupees; the High Court affirmed (para 1). On information, the empowered officer raided his house with panch witnesses and recovered the charas from his trouser pocket (paras 1-2). The panch witness PW1 admitted in cross-examination that the accused had asked to be taken to a Magistrate for the search, but the police said it was not necessary (para 2). The State replied that the search had been made by a gazetted officer, PW2, so Section 50 was not attracted (para 3).

Reading Sections 41, 42 and 50 together, the Court called Section 50 the minimum safeguard for an accused (para 4). Whenever a person is to be searched on personal knowledge or information and asks to be taken to a gazetted officer or the nearest Magistrate, that must be done, and failure would vitiate the conviction (para 4). The plain language of Section 50 allows no differentiation depending on which officer conducts the search; the right exists for the sanctity of the search, given the shifting of the onus to the accused and the severe punishment under the Act (para 4). Endorsing the three-Judge Bench in Saiyad Mohd. Saiyad Umar Saiyad, the Court noted Section 50 obliges the officer to inform the person of his right (paras 4-5). Applying the Constitution Bench in Baldev Singh, it held that an empowered or duly authorised officer acting on prior information must inform the suspect of that right, and that if the suspect opts, a search not made before a gazetted officer or Magistrate renders the recovery suspect and vitiates a conviction based only on it (paras 5-6). Here the accused was not informed, and his own request was refused (paras 5-6).