Written Consent to Police Search No Substitute for Section 50 NDPS Compliance: Supreme Court Acquits

According to the prosecution, on 23.11.2002 a police raiding party led by the Station House Officer, acting on secret information about a bus passenger carrying contraband, intercepted the appellant (paras 4-6). He admitted possessing charas and was told of his legal right to be searched in the presence of a Gazetted Officer or a Magistrate, but said he trusted the raiding party and gave written consent to its search, which yielded about 2.5 kg of charas from his body (paras 7-8). The Additional Sessions Judge convicted him under Section 20 and sentenced him to ten years' rigorous imprisonment and a fine of Rs. 1,00,000; the High Court at Nainital upheld the conviction (paras 1, 10-11).

The scope of Section 50 is settled by the Constitution Benches in Baldev Singh and Vijaysinh Chandubha Jadeja (para 21). Vijaysinh holds that Section 50's requirements are mandatory and must be strictly complied with, and that the officer must apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate (paras 22-23). The courts below treated the written consent to a police search, given after the appellant was told of his right, as full compliance (para 26). The Court disagreed (para 27). It was admitted that the appellant was never produced before a Magistrate or Gazetted Officer, that the search was not made in the presence of either, and that none of the raiding officials was a Gazetted Officer, so "they were not empowered to make search and recovery from the appellant" except in such presence (para 28). For a recovery from the suspect's body, the prosecution must prove that the search was made in the presence of a Magistrate or a Gazetted Officer; none of the five police witnesses said so (paras 28-29). Non-compliance with the mandatory procedure "is fatal to the prosecution case" (para 30).