Strict compliance with the provisions of Section 50 of the NDPS Act is mandatory, and failure to comply can render the recovery of illicit articles suspect and vitiate the conviction.

Dev Darshan Sud, J

The appellant challenges his conviction for offences under Section 18(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘ND&PS Act’). He has been sentenced to undergo imprisonment of five years and fine of Rs. 20,000/- and in default to suffer rigorous imprisonment for one year.

2. All the facts are not being considered in detail but only those necessary for adjudication for the points urged in this appeal. Mr.Rajiv Jiwan, learned counsel urges that the provisions of Section 50 of the ‘NDPS Act’ have not been complied with which fact per se entitles the appellant for acquittal (b) that the seal impression ‘A’ which was affixed on the contraband (opium weighting 50 grams) has not been produced in Court but only the seal sample of the packet after it was re-sealed. No evidence or explanation has been placed on the record as to why the first seal impression ‘A’ was not produced.

3. On the first point, learned counsel relies upon the Ext. PA to urge that the Investigating Officer has not complied with the provisions of Section 50 of the ‘NDPS Act’ and this document nowhere states that there is right vested in the appellant to have been searched conducted either by the police officer(s), gazetted officer or a Magistrate. He also refers to the evidence of PW9 Sh. Nardev Singh, Investigating Officer, who admits in his cross examination that:

“Yaha Thik hai ki ish mukadmay kay record may yaha na leekah hai ki doshi ko option datay samay waha apnee talashi kishi rajpatrit adhikari ya magistrate kay pass daay sakta hai jo ushka kanuni adhikar hai yaha thik hai ki aisha furd wa gawahan kay bayan wa report jair dhara 57 of the Act kay bheji hai na leekhi hai.” “It is correct that in the record of the case I have not recorded while giving option to the accused to be searched before the Gazetted Officer, Magistrate or Police that he has legal right in this regard. It is correct that this omission is there in the memo, statements of witnesses and report sent U/S 57 of the Act.”

4. Learned counsel submits that there is no evidence on the record to establish the compliance of Section 50 of the ‘NDPS Act’ and Ext.PA nowhere mentions that the accused has legal right and option to be searched either by the police officials, gazetted officers or a Magistrate. Learned counsel places reliance on the decision of this Court in State of H.P. Vs. Harish Thakur, Latest HLJ 2010 (HP) 1472, holding:

16. In our considered view, the law is well settled that in respect of personal search mere asking the accused in the presence of witnesses as to whether he wanted to be searched before a Magistrate or a Gazetted Officer or by the police official, is not the compliance of Section 50 of NDPS Act, but the accused must be informed that he has right to be searched. From the documents, we find that no such endeavour was made on the part of PW-9 SI Lal Singh to inform the accused that he has right to be searched. As such, there is non- compliance of Section 50 of the ‘NDPS Act’. So much so, merely taking consent of accused to be searched is not sufficient compliance of the provisions of Section 50 of the ‘NDPS Act’, rather the accused has to be very categorically and specifically be informed about his right to be searched. Such view has also been taken by the Division Bench of this Court in Fateh Singh (supra). (P.1476)

5. Learned counsel then urges that the Supreme Court in Vijaysinh Chandubha Jadeja Vs. State of Gujarat, (2011) 1 SCC 609 holds:

“29. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intend