Asking Whether Suspect Wants Search Before Senior Officers Is Not Section 50 Compliance: Supreme Court

The appellant was convicted under Section 9(c) read with Section 18 of the NDPS Act for allegedly possessing 11 grams of opium and sentenced to 10 years' rigorous imprisonment and a fine of Rs. 1 lakh (para 1). According to the prosecution, a Sub Inspector received a telephonic message on 6.10.1990 that narcotic drugs were being sold at a junction, recorded it in the general diary, searched the appellant there and found opium in the fold of his dhoti; asked whether he would like to meet a higher official or Gazetted Officer, he allegedly said no (para 3). No one appeared for the appellant; the State relied on substantive compliance (para 2).

Because proof of possession shifts the onus to the accused and carries severe punishment, the Act provides safeguards, including Sections 42 and 50 (para 3). The Court read the Constitution Bench in Baldev Singh as holding that these safeguards must be followed in addition to those of the Code of Criminal Procedure and that Sections 42 and 50 are mandatory (para 3). Under Balbir Singh, total non-compliance with Section 42(2) affects the prosecution case (para 4). Here, the officer who recorded the information was not shown to have complied with Section 42(2) (para 5). Nor was Section 50 complied with: asking the accused whether he should be searched before senior officers or a Gazetted officer was treated below as compliance, but "The accused was required to be apprised of his right conferred under Section 50 giving him the option to search being made in presence of gazetted officer or the Magistrate." (para 5). Both courts below failed to consider this (para 6).