Section 50 NDPS Not Attracted to Bag Search; Written Waiver of Right Required Henceforth, Supreme Court Holds

On 23 August 1998 an ASI in Kullu received secret information about a man carrying charas at the Sarwari bus stand; he recorded it and sent it to the Superintendent of Police (para 3). The appellant, found with a bag on his shoulder, was offered a search before the police, a Gazetted Officer or a Magistrate and chose the police; 1.25 kg of charas was recovered from the bag (para 3). The Sessions Judge, Kullu acquitted him in 1999, but the High Court of Himachal Pradesh reversed the acquittal in 2010 and sentenced him under Section 20 of the NDPS Act to two years' rigorous imprisonment and a fine of Rs 50,000 (paras 1-2, 6-7).

Section 50 was not complied with, because the appellant was offered a third option of search before the ASI; only a Gazetted Officer or a Magistrate may be offered (paras 27, 29). But the provision applies only to a search of the person, and the evidence showed that only the bag was searched (paras 30, 36). The Court held that Arif Khan is not authority for requiring a search before a Gazetted Officer or Magistrate after the suspect has expressly waived the right; if he declines, the officer may search him (paras 59-62). Prospectively, such a waiver must be taken in writing, signed by the suspect in the presence of the officers (para 63). Reviewing the case law, it held that SK. Raju and Parmanand, following Dilip, overlooked that in Pawan Kumar the person too had been searched, and it adhered to Baldev Singh and the larger Bench in Pawan Kumar (paras 103, 119-121). Section 50 "was not required to be complied with as the recovery was from the bag" (para 125).