Mandatory compliance with procedural safeguards under Section 50 of the NDPS Act is vital for the validity of search and seizure, particularly ensuring the accused understands their legal rights.

JUDGMENT

Anish Dayal, J.

1. This petition has been moved by the State seeking leave to appeal against the impugned judgment passed by the Special Judge, NDPS Act (Central District), Tis Hazari Courts, Delhi in FIR No.115/2013 under section 22, 23 read with section 28 and 29 of NDPS Act. Learned APP for the State has submitted that the basis of accusation is that the accused-respondent was Spanish National who was staying in some hotel at Paharganj and was indulging in procuring and export of Ketamine, a psychotropic substance to foreign countries through courier. Pursuant to raid based on secret information, the accused was apprehended and 4 kgs of Ketamine recovered from the rucksack being carried by him. Vide the impugned judgment, the Ld. Special Judge has concluded that the prosecution has been able to establish that 4 kgs of Ketamine from the conscious possession of the accused, however the recovery stands vitiated for non compliance of mandatory procedural safeguards laid down in Section 50 of the Act. As a consequence thereof, the accused was acquitted of all the charges against him in the said case.

2. It is stated by the counsel for the respondent-accused that the said accused is a foreign national and was arrested in 2013 and since then, he remained in incarceration till his acquittal in 2019 and is unable to go back to his home-country due to pendency of this petition. A perusal of impugned order would show that the principal basis of acquittal was lack of compliance of section 50 of NDPS Act by the investigating authorities, which is extracted as under for reference:

50. Conditions under which search of persons shall be conducted.

(1) When any officer duly authorised 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 the 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.]

3. The Ld. Special Judge in the impugned judgment extracted the law, including decisions of Hon'ble Supreme Court which hold that section 50 of the Act is mandatory and not directory. The following judgments are inter alia referred to in the impugned judgment: State of Punjab v. Balbir Singh (1994) 3 SCC 299; State of Himachal Pradesh v. Prithi Chand (1966) 2 SCC 37; State of Punjab v. Baldev Singh (1999) 6 SCC 172 (CB); Vijay Sinh Chandubha Jadeja v. State