The Supreme Court clarified that the provisions of Section 50 of the NDPS Act must be strictly complied with, emphasizing the importance of informing suspects of their rights during searches.

ORDER :

1. Leave granted.

2. The impugned judgment dated 28.03.2023 grants bail to the respondent, Mohd. Jabir, on the ground of violation of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985¹[“NDPS Act”, for short.], as the notice under the provision, though given, had used the words “any Gazetted Officer”. The impugned judgment holds that the words “nearest Gazetted Officer” should have been used and therefore Section 50 was contravened. In the counter affidavit filed by the respondent, Mohd. Jabir, it is stated that, following the judgment of the High Court, bail has been granted in a large number of matters.

3. Section 50 of the NDPS Act reads as under: -

“50. Conditions under which search of persons shall be conducted.—(1) When any officer duly authorized under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.”

4. The provision vide sub-section (1) mandates that when an officer duly authorized under Section 42 is about to search a person under the provisions of Sections 41, 42 or 43, he shall, if the person about to be searched so requires, take the person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

5. It is obvious that the intent behind the provision is to ensure that the person about to be searched is made aware of the option to be taken before a third person other than the one who is conducting the search. Use of the expression “nearest” refers to the convenience as the suspect is to be searched. Delay should be avoided, as is reflected from the use of the word “unnecessary delay” and the exception carved in sub-section (5) to Section 50 of the NDPS Act. Nothing more is articulated and meant by the words used, or the intent behind the provision.

6. Having said so, we are unable to appreciate the reasoning given by the High Court in the impugned judgment, which states that use of the word ‘any’ does not satisfy the mandate of the ‘nearest’ Gazetted Officer and, hence, the respondent, Mohd. Jabir, is entitled to bail. The option given to the respondent, Mohd. Jabir, about to be searched, with reference to a Gazetted Officer or a Magistrate, does not refer to the authorized person in the raiding team itself.

7. It is pertinent to mention that the respondent, Mohd. Jabir, did not exercise the option.

8. The aforesaid ratio is not in conflict with the decision of this Court in Arif Khan alias Agha Khan v. State of Uttarakhand, (2018) 18 SCC 380, wherein this Court has observed that requirements