The court ruled that once an accused is informed of their rights under Section 50 of the NDPS Act by the investigating officer, no further consent is required from a Gazetted Officer or Magistrate for a personal search.

JUDGMENT :

Mr. Sureshwar Thakur, J.:- Since a common question of law involves in both the petitions (supra), therefore, the said question of law is amenable to be answered through a common verdict being made thereons.

2. The present reference becomes generated from the order pronounced by this Court on 4.8.2021 upon CRM-M-26565-2021 and another connected case (supra), wherebys the petitioners were granted regular bail. However, while disposing of the above petitions, the learned co-ordinate Bench of this Court has passed the following order:

“7. Before parting this order, this Court is of the opinion that the provisions of Section 50 of the NDPS Act, would stand complied with once the empowered police officer apprises the apprehended person of his right to be searched in the presence of a Magistrate or a Gazetted Officer. In case, such person opts to be searched in the presence of a Gazetted Officer and a Magistrate and such Gazetted Officer/Magistrate comes to the spot, he at best, is required to introduce himself being a Gazetted Officer or a Magistrate and apprise himself of the facts by generally questioning the police officials or the apprehended person but is not required to extend fresh offer in terms of Section 50 of the NDPS Act. In case Section 50 of the NDPS Act, is to be interpreted in this manner that even the Gazetted Officer and Magistrate is required to give a fresh option then it will be an endless exercise inasmuch as the accused may every time gave his option to be searched from some other officer.

8. However, in Joginder Singh’s case (supra), judgment passed by a Coordinate Bench a different opinion has been expressed which for the sake of ready reference reads as follows:

“xx xx xx xx

(i) The mandatory guidelines, which should be followed by the Investigating Officers, are as under:

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The Gazetted Officer or Magistrate before whom any such person is brought shall also comply with the provision of Section 50 of the NDPS Act by apprising the person of his/her right.

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9. The said matter needs to be examined by a Larger Bench in view of a different opinion held by this Bench. The matter, as such be referred to Hon’ble the Chief Justice for referring the matter, if same deemed appropriate to a Larger Bench to settle the aforesaid controversy.”

3. The question of law which is required to be answered relates to Whether a Gazetted Officer or a Magistrate before whom any such person is brought, or when such a Gazetted Officer or a Magistrate proceeds to the crime site, is also then required to comply with the provisions of Section 50 of the NDPS Act by apprising the accused of his/her right, relating to his/her being asked to re-furnish his/her fresh consent for thus his/her personal search becoming carried in the presence of the Gazetted Officer or the Magistrate ?

4. Since contra postures are taken by two different Benches, about the respective necessity and unnecessity, qua upon the accused appearing before a Gazetted Officer or a Magistrate or upon the Gazetted Officer or the Magistrate, thus proceeding to the crime site hence appertaining to the takings then of a fresh consent from the accused concerned, rather for his/her being personally searched. Resultantly, the said contra postures are required to be resolved.

5. For the reasons to be assigned hereinafter, this Court is of the firm view that in case, the investigating officer concerned, in terms of the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’), provisions whereof become extracted hereinafter, makes an intimation to the accused at the crime site, about the statutory right invested in him/her, to ensure the making of his/her personal search in the presence of a Gazetted Officer or a Magistrate, whereupons, on his/hers refusing to accord consent for his/her personal search being made by the investigating officer concerned, rather proceeds to ask for his/her personal search being