In one of my previous
blog posts, I had reported a decision
of the Supreme Court of India (“Supreme Court”) wherein the importance of
section 50, Narcotics Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”),
was emphasised. In that case, it was held by the court that requirement under
section 50 of the NDPS Act cannot be considered as a mere formality. Under Section
50 of the NDPS Act, the concerned officer is required to give a notice to the suspected
person of his right to be searched in the presence of a Gazetted Officer or a
Magistrate.
In a recent
development, Supreme Court has yesterday delivered a judgment [State of
Rajasthan v. Parmanand & Anr., dated 28/02/2014] opining that in order
to comply with the requirement under section 50 of the NDPS Act, the suspected
person should be served with an ‘individual notice’. In the present case, a joint notice was provided to the two
suspected persons; this, in opinion of the court, would not fulfil the requirement under section 50.
Facts: On receiving
information that Parmanand and Suraj (“Respondents”) were to hand over 10 Kg of
opium to a smuggler, a police raid was conducted and the Respondents were caught.
One of the Respondents, Paramanad, was carrying a gunny bag. Expressing his intention to search, Sub-Inspector (S.I.
Qureshi), through a written notice,
informed the Respondents of their right under section 50 of the NDPS Act. S.I. Qureshi informed the Respondent that they have
a right to get searched in the presence of any nearest Magistrate or any gazetted
officer or in the presence of
Superintendent (J.S. Negi) of the raiding party.
To the served
written notice, Respondent no. 2(Surajmal),
by putting a thumb impression,
consented (on behalf of himself and Respondent no.1) for search by S.I. Qureshi in the presence of Superintendent J.S Negi. On being
searched, opium was found in the gunny
bag.The Respondents
were convicted by the trial court but, on appeal, the High Court acquitted them
on the ground that section 50 of the NDPS Act has not been complied with. [Please note that both persons and bag were searched]
Contentions: On behalf of the
Respondents, it was contended that the case was false. More importantly, it was
contended that the Respondents, who are entitled for individual notice, were served with a joint notice.
On the other hand,
it was contended by the State of Rajasthan (“Appellant”) that since S.I.
Qureshi had communicated the Respondents of their right, section 50 of the NDPS
Act has been complied with.
Findings of the
Court: Emphasising the importance and mandatory nature of
section 50, NDPS Act, the court opined that:
“......if merely a bag carried
by a person
is searched without there being
any search of his person, Section 50 of the NDPS Act will have no application.
But if the bag carried by him is searched and his person is also searched,
Section 50 of the NDPS Act will have application.....”
As mentioned in the facts, both
persons and the bag were searched in
the present case. That being the case, it was opined by the court that section 50,
NDPS Act, would have an application. While determining whether
the requirement under section 50 has been complied with, the court noticed that
the Respondent no. 1 (Parmanand) had neither signed the notice nor had he given
individual consent. Rather, a joint
notice was served and the Respondent no. 2 gave consent on behalf of
himself and the Respondent no. 1. This, in the opinion of the court, would
frustrate the purpose of section 50:
“.......In our
opinion, a joint
communication of the
right available under Section 50(1) of the NDPS Act to the accused would frustrate
the very purport
of Section 50. Communication of the said right to the
person who is about to be searched is not an empty formality. It has a purpose. Most of
the offences under
the NDPS Act
carry stringent punishment and,
therefore, the prescribed procedure has to be meticulously
followed.....”
The communication of
the right, under section 50 of the NPDS Act, should be clear and unambiguous. In
the opinion of the court, a joint
communication may not be clear or
unequivocal and may create confusion.
Another important
point was noticed by the court – S.I. Qureshi, apart from informing Respondents
that may be searched in the presence of a Magistrate of a Gazetted Officer,
also informed that they can be searched in front of Superintendent J.S. Negi
(who was a part of raiding party). According to the court, Superintendent
J.S. Negi cannot be considered as an ‘independent officer’. Since the idea
behind section 50 is to provide person an opportunity to get searched in the
presence of an ‘independent office’, search in the presence of J.S. Negi would vitiate the process.
Conclusion: The appeal was
dismissed
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