“Individual Communication” to Searched Person Required under Section 50, NDPS Act

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.

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.