Strict compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act is mandatory; failure to inform the suspect of their rights invalidates the recovery of contraband.

JUDGMENT :

Tarlok Singh Chauhan, J.

Aggrieved by the acquittal of the respondent for the commission of an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (inshort, “the Act”), the appellant-State has filed the instant appeal.

2. It is not in dispute and is rather specific case of the prosecution that 900 grams of cannabis was recovered inside the shirt and underpants worn by the respondent.

3. It shall be apt to reproduce the relevant portion of the statement of Investigating Officer, which reads as under:-

“The vehicle passing from the place were also stopped and the persons occupying the vehicle were asked to become witnesses, but they also refused. Therefore, the police officials ASI Mohan Lal second and H.C. Dharam Dass were associated as witnesses and accused on asking told his name and address. We have our search to the accused about which memo Ex.PW7/A was prepared. Thereafter, personal search of the accused was conducted and it was found that accused was carrying two packets wrapped with brown tape on his stomach inside the shirt under pant. On checking inside the packet black material in the shape of Chapati and some of it were also wrapped in plastic on experience it was found charas. On weighing charas recovered was found 900 grams.

4. The learned trial court acquitted the respondent on two grounds:-

(i) Non-joining of independent witness; and

(ii) Non-compliance of Section 50 of the Act.

5. It is more than settled that mere non-association of the independent witness would not vitiate the trial per se as it is not mandatory to associate an independent witness, but as regards non-compliance of Section 50 of the Act, the same is fatal to the case of the prosecution as rightly held by the learned trial court.

6. In the case of Arif Khan @ Agha Khan Vs. State of Uttarakhand (2018) 18 SCC (380), Hon'ble Supreme Court has held that it is mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. Further that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate. Para Nos.18 to 20 of the aforesaid judgment read as follows:

"18. What is the true scope and object of Section 50 of the NDPS Act, what are the duties, obligation and the powers conferred on the authorities under Section 50 and whether the compliance of requirements of Section 50 are mandatory or directory, remains no more res integra and are now settled by the two decisions of the Constitution Bench of this Court in State of Punjab vs. Baldev Singh (1999) 6 SCC 172 and Vijaysinh Chandubha Jadeja (supra).

19. Indeed, the latter Constitution Bench decision rendered in the case of Vijaysinh Chandubha Jadeja (supra) has settled the aforementioned questions after taking into considerations all previous case law on the subject.

20. Their Lordships have held in Vijaysinh Chandubha Jadeja (supra) that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the Police Officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a Gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the offi