Consent Memo Offering a Choice Does Not Satisfy Section 50 NDPS: Supreme Court Acquits

On 4 January 1999 a joint Customs and police naka stopped a car; two occupants fled and the appellant was apprehended by a Superintendent of Customs (para 2). Given the option of a search before a Magistrate or a Gazetted Officer, he chose the latter; two packets of heroin, each weighing 1 kilogram, were found in his lap (para 2). He confessed under Section 108 of the Customs Act (para 3). The trial court held the confession admissible, the officer not being a police officer, and Section 50 complied with because a consent memo had been drawn up; it sentenced him under Section 22 to ten years' rigorous imprisonment and a fine, which the High Court confirmed (paras 1, 5-6).

The consent memo, in Gurmukhi, "cannot by any stretch of imagination be said to be informing the appellant of his right to be searched in the presence of a Gazetted Officer or a Magistrate", because he was only given the option to be searched before one of them (para 9). Quoting the Constitution Bench in Vijaysinh Jadeja, the Bench read the Constitution Bench as holding that a consent memo is not such information; the information need not be written but must be conveyed in some form (paras 9-10). The searching officer "did not utter a single word as to whether he had informed the appellant of his right", so there was "complete non-compliance with the provisions of Section 50" (para 10). On the confession, Kanhaiyalal had not examined the principles underlying Section 25 of the Evidence Act against Section 108 of the Customs Act and relied exclusively on Raj Kumar, while Noor Aga, the latest judgment, dealt with the matter very elaborately; the Bench thought it "proper for us to follow the ratio of the judgment in Noor Aga's case", particularly as Section 50 had not been complied with (para 11).