Strict compliance with Section 50 of the NDPS Act is mandatory; failure to inform the suspect of their right to be searched before a Gazetted Officer or Magistrate vitiates 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 the alleged recovery of 30 grams charas having been wrapped in a newspaper was effected from the left pocket of the jacket of the respondent.

3. It was conceded before the learned trial court that there was non-compliance of Section 50 of the Act and the learned trial court, after taking note of non-compliance of Section 50 of the Act and finding major discrepancies in the prosecution case, acquitted the respondent.

4. In this background, the Court is required to consider the effect of non-compliance of Section 50 of the Act, which reads as under:-

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 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.

5. 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 Secti