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.
