Friday, November 1, 2013

Section 50 of the NDPS Act, 1985 Should not be Ignored While Conducting a Search

In a decision concerning the interpretation of section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”), it has been held by the Supreme Court of India (“Supreme Court”) that the provision should not be dealt by the courts in a lightly manner. Section 50 of the NDPS Act provides for the search to be conducted in the presence of a Gazetted Officer or a Magistrate. In the present case, it was contended by the appellant, Gurjan Singh, that the search of the impugned gunny bags was not conducted in the presence of a Gazetted Officer. Rather, it was conducted in the presence of an ‘acting DPS’, who cannot be equated with a Gazetted Officer. In this post, I am highlighted the important facts, contentions and findings of the court.

Facts: On 04.04.1996, after catching the appellant with some suspected gunny bags in a tractor, S.I. Darbara Singh (P.W. 6) informed the appellant of his intention to check the bags. P.W. 6 also told the appellant if the latter wants, the search could be conducted in front a Gazetted Officer. When the appellant consented for search in front of a Gazetted Officer, Baldev Singh (P.W. 3), acting DSP, was called. In front of Baldev Singh, the search was conducted and poppy husk was recovered from the gunny bags. Accordingly, proceedings were initiated against the appellant.

Before the trial court, it was contended on behalf of the appellant that there was clear violation of Sections 42 and 50 of the NDPS Act, in as much as, the search was not conducted in the presence of a Gazetted officer or a Magistrate. According to the appellant, P.W. 3 was not a Gazetted Officer since as he was as not a regularly promoted D.S.P. but was only an Inspector in the category of Own Rank Pay. Rejecting this, trail court held that there was no need to comply with section 50 of the NDPS Act. The appellant was therefore found guilty by the trial court. [Reliance was placed on State of Punjab vs. Balbir Singh, (1994) 3 SCC 299]. On appeal, the decision of the trail court was confirmed by the High Court.


Name of the Case: Gurjant Singh @ Janta v. State of Punjab, Criminal Appeal No. 1868 of 2013, Judgment dated October 28, 2013

Relevant Legislations: Narcotic Drugs and Psychotropic Substances Act, 1985

Bench: Division – Justice S.S. Nijjar and Justice F.M. Ibrahim Kalifulla

Contentions: Before the Supreme Court, it was again contended on behalf of the appellant that, since P.W. 3 was not a Gazetted Officer, there was non-compliance of Section 50 in the matter of search. Hence, conviction imposed on the appellant cannot be sustained. On the other hand, it was contended on behalf of the respondent that the order of the High Court was corrected and does not deserve interference.

Findings of the Court:

Holding that the decision of the trail court, as affirmed by the High Court, was not correct, Supreme Court was of the opinion that the requirement under section 50 of the NDPS Act cannot be considered as a mere formality. For reaching its conclusion, the trail court had relied on the decision of Balbir Singh (supra). According the Supreme Court, the reliance was not appropriate. In Balbir Singh (supra), it was held that an application of section of section 50 is not necessary where a police officer, without any prior information, makes a search or arrests a person. Hence, according to the Supreme Court, question of not applying section 50 of NDPS would arise only when the concerned police officer conducts arrest, search and seizure in the absence of information that any offence punishable under NDPS Act has been committed. Along with this legal position, in Balbir Singh (supra), the importance of section 50 was also highlighted.

Distinguishing the facts of Balbir Singh (supra), Supreme Court opined that, in the present case, police officer had felt the need to comply with section 50 of the NDPS Act. Hence, the application of section 50 cannot be ignored. As per the factual situation, police officer, while conducting the search of gunny bags, had asked the appellant as to whether he required the presence of a Gazetted Officer. The police officer asked this only when he felt the need of invoking section 50.

Accordingly, it was held that trail court had wrongly held that section 42 and 50 of the NDPS Act are not applicable to the case. Having referred to the judgments of Baldev Singh (supra) and State of H.P. vs. Pawan Kumar, (2005) 4 SCC 350, the court highlighted the importance of section 50 thereby holding that:

                                            “.........the purpose of Section 50 was to ensure that on the one hand, the holding of a search and seizure was not a farce of an exercise in order to falsely implicate a person by unscrupulous police authorities, while on the other hand to  prevent  an  accused  from  committing  an  offence  of  a serious  nature  against  the  society,  warranting  appropriate criminal  proceedings  to  be  launched  and  in  the  event  of establishing such offence, conviction and sentence to be imposed in  accordance with law.....”

The present appeal was ultimately allowed by the Supreme Court and the order of the High Court was set aside. 

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