The voluntary waiver of the right to be searched before a Gazetted Officer or Magistrate by the accused allowed the empowered officer to conduct the search without the presence of a Gazetted Officer or Magistrate, as mandated by Section 50 of the NDPS Act.

Headnote:
NDPS Act - Search Procedure - Section 50
Fact of the Case:

The case involved a bail application seeking regular bail for the accused, Nabi Alam, who was found in possession of a commercial quantity of contraband Heroin. The accused alleged that the search conducted under Section 50 of the NDPS Act was not compliant with the statutory stipulations, as he was not searched in the presence of a Gazetted Officer or Magistrate.
Finding of the Court:

The court analyzed the conflicting views on the scope and ambit of Section 50 of the NDPS Act and determined the key question of law: whether the accused, after waiving his right to be searched before a Gazetted Officer or Magistrate, can still be searched only before a Gazetted Officer or Magistrate. The court found that the accused's waiver of this right allowed the empowered officer to conduct the search without the presence of a Gazetted Officer or Magistrate.
Issues: The main issue was whether the accused's waiver of the right to be searched before a Gazetted Officer or Magistrate rendered it mandatory for the prosecution to conduct the search only before a Gazetted Officer or Magistrate.
Ratio Decidendi: The court held that the accused's voluntary waiver of the right to be searched before a Gazetted Officer or Magistrate allowed the empowered officer to conduct the search without the presence of a Gazetted Officer or Magistrate, as mandated by Section 50 of the NDPS Act.
Final Decision: The court answered the issue in the negative, ruling that the accused's waiver of the right to be searched before a Gazetted Officer or Magistrate allowed the empowered officer to conduct the search without the presence of a Gazetted Officer or Magistrate. The bail application was listed for further proceedings.

Judgement Key Points

Section 50(2) of the NDPS Act states that if the person to be searched makes a requisition, the officer conducting the search may detain the individual until he can be brought before the nearest Gazetted Officer or Magistrate. This subsection emphasizes that when a person requests to be taken before such an officer or magistrate, the empowered officer is restricted from conducting the search without doing so.

Importantly, if the person to be searched is brought before the Gazetted Officer or Magistrate and the officer or magistrate finds no reasonable grounds for the search, the individual must be discharged immediately. Conversely, if reasonable grounds are established, the search can be conducted.

Furthermore, the law recognizes that if the person to be searched expressly waives their right to be searched before a Gazetted Officer or Magistrate after being informed of this right, the officer is then permitted to proceed with the search without the need to produce the individual before such authority. This waiver effectively overrides the requirement for the search to be conducted only before a Gazetted Officer or Magistrate, provided that the waiver is made voluntarily and with full understanding of the rights involved.

In summary, Section 50(2) provides that the search can only be conducted before a Gazetted Officer or Magistrate if the individual requests it. If the individual waives this right, the officer may proceed with the search without such a requirement.

JUDGMENT

Siddharth Mridul, J. - The present matter has been received by way of Reference v de Referral Order dated 15.06.2020 passed by learned Single Judge of this Court and marked to this Bench by Hon'ble the Chief Justice by directions dated 18.06.2020, to adjudicate and settle the question of law vis- -vis the Provision of Section 50 Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act'), which governs the procedure qua the search of a person suspected of being in possession of a narcotic drug or a psychotropic substance, inter alia before a Gazetted Officer or Magistrate.

2. The genesis of the present proceeding, that calls for determination is that a bail application under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'), primarily seeking regular bail pending ensuing trial before the Court of learned Additional Sessions Judge/ Special Judge (NDPS), West, Tis Hazari Courts, Delhi, was instituted on behalf of the applicant/accused, which was dismissed by learned Sessions Court v de order dated 13.07.2018.

3. Thereafter, the present bail application under Section 439 Cr.P.C was filed, which has been referred to this Bench by the learned Single Judge of this Court, by reason of the statedly contradictory views expressed by various Benches of this Court qua the scope and ambit of the stipulations contained in Section 50 of the NDPS Act, particularly in relation to the question whether, even though the accused at the time of his search has been apprised of his right to be so searched in the presence of a Gazetted Officer or Magistrate, 'if he so requires' but has expressly waived his right to be so searched before a Gazetted Officer or Magistrate; is it still mandated by the said provision that the the accused be searched only before a Gazetted Officer or Magistrate.

4. The substratum of the present case is that, upon the reception of a tip-off by Sub-Inspector Vinod, Narcotics Cell, Police Station-Crime Branch on 27.07.2017, it was brought to his notice that two people namely Nabi Alam (the present applicant/accused) and Mohd. Aakil were allegedly indulging in the supply of Heroin in Delhi, which the applicant/accused and his accomplice obtained from Badaiyu/Bareli and that they would be supplying a big consignment of the contraband Heroin between 2.00 p.m. to 2.30 p.m. near traffic light at Chanakya Place, Uttam Nagar. It was also intimated to the police officer by the secret informer that, if a raid were to be conducted at that time, the accused persons could be caught off-guard, while selling or/and purchasing Heroin. Accordingly, a raid team was formed and the applicant/accused Nabi Alam along with one Mohd. Aakil were apprehended on the spot. Upon a personal search of the applicant/accused Nabi Alam, a polythene was recovered from the pocket of the trousers worn by him. Inside the said polythene, contraband Heroin weighing 250 grams was found; and similarly, from the possession of Mohd. Aakil 50 grams of Heroin was recovered. The samples of the seized contraband were sent to Forensic Science Laboratory Division ('FSL') at Rohini, Delhi and the result so obtained confirmed the presence of di-acetyl-morphine in the samples. On the basis of the aforesaid, Nabi Alam and Mohd. Aakil were arrested and booked after registering First Information Report under Sections 21 and 29 of the NDPS Act.

5. At the outset, it is observed that the application seeking bail moved before the learned Session's Court, came to be dismissed v de order dated 13.07.2018, on the ground of recovery of 'commercial quantity' of the contraband from the possession of the applicant/accused Nabi Alam.

6. Mr. Aldanish Rein, learned counsel appearing on behalf of the applicant/accused Nabi Alam submits that he has been falsely implicated in the present case and has been in judicial custody since his arrest on 27.07.2017. It is the contention of the counsel for the applicant/accused