The debate on wider interpretation of section 50 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter, referred to as NDPS Act) has once again come into highlights when the Supreme Court again dealt with this issue in the matter of Kallu Khan v. State of Rajasthan. In this case the accused and his vehicle were searched in the presence of S.H.O and in personal search no recovery was made by the police but a polythene bag containing brown substance resembling smack was found beneath the seat of the motorcycle. Considering, the facts of the case the Apex Court held that since, no recovery was made from the accused during personal search for which compliance of section 50 is mandatory instead the substance was recovered during the vehicle search which does not come under the ambit of personal search as is settled by judicial precedents therefore, compliance of section 50 of NDPS Act is not necessary in vehicle search.
The Narcotics Drugs and Psychotropic Substances Act, 1985 has created strict liability offences. Section 37 of the Act provides that NDPS cases are cognizable and non-bailable. If an individual allegedly commits any offence under the provisions of the Act, then he has to undergo incarceration till the end of a trial and chances of getting bail are meagre. This also indicates that if a person is falsely implicated in a case, then there is a serious curtailment on the due process protection. Section 50 of the act entitles the suspect with the right of getting searched in the presence of a magistrate or a gazetted officer. The term “personal search” has been interpreted differently by the various judicial pronouncements.
Section 50 of the NDPS Act, lays down the conditions under which the person is ought to be searched as per the Act. It safeguards the rights of individuals against the arbitrary actions of the law enforcement authorities meaning thereby that by the virtue of Section 50 of the Act an innocent person gets prevented from the false claims and charges of the law enforcement authorities.
The deterrent effect of this Act is to such extent that if any allegations are imposed on an individual under this Act then he cannot apply for Anticipatory Bail provided under section 438 of the Code of Criminal Procedure, 1973 in some States because some States vide amendments have prohibited an individual to move his anticipatory bail application if he is implicated under the provisions of NDPS Act for example under section 438(6)(ii) of The Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1977 a person is not entitled to anticipatory bail if allegations under the provisions of NDPS Act are levelled against him.
JUDICIAL INTERPRETATION OF SECTION 50 OF THE NDPS ACT
There are catena of judgments which have interpreted the term personal research provided under section 50 of the NDPS Act. One of the landmark judgment is State of Punjab v. Baldev Singh in this case the Apex Court while elaborating the relevance of Section 50 of the NDPS Act stated that Section 50 vests an individual with the right to get searched in the supervision of a magistrate or gazette officer considering the fact that severe consequences are faced by the accused under the provisions of the Act. However, the judgment was silent on the issue of consequence/validity of a seizure in case of a composite search where recovery was made only from the bag/receptacle/vehicle and not the person of the accused. The judgment used the specific line ending with the word “etc.” many subsequent judicial pronouncements used this sentence to hold that recovery from a bag does not attract section 50 of the Act without taking into account the fact that the word etc. cannot encompass a case of a composite search or where the person is in physical control of such bag or receptacle.
The Apex Court in State of Himachal Pradesh v. Pawan Kumar dealt with the similar issue of personal search under section 50 of the Act, the three judge bench went on to say that a carry bag or other similar object involves additional effort and energy, and hence, it was concluded by the Hon’ble Court that recovery made from any such article that require the additional effort and energy will not be included within the scope of personal search under section 50 of the NDPS Act.
In Dilip v. State of Madhya Pradesh, the recovery of 5kg 890 grams of opium was made from scooter and the riders were arrested on account of recovery. The learned Sessions Court acquitted them owing to the non-compliance of section 50 of the NDPS Act, this decision was then overturned by the Madhya Pradesh High Court. The accused person then appealed to Supreme Court against the decision of the Madhya Pradesh High Court, the Supreme Court then relying on the observation laid down in State of Punjab v. Baldev Singh ruled that compliance of section 50 of the NDPS should have been done and therefore, the decision of the Madhya Pradesh High Court was overturned.
The Apex Court in the matter of Vijaysinh Chandubha Jadeja v. State of Gujarat, the constitutional bench of the Supreme Court held that the compliance of section 50 of the Act is mandatory and failure to do so would make the recovery suspicious, therefore, the conviction was invalidated solely on the ground of non-compliance of the section 50 of the NDPS Act.
In State of Rajasthan v. Parmanand & Anr. a combined communication was made to the accused, informing them about the legal right of being searched in the presence of magistrate or gazette officer. The second person gave his consent in writing to this the Hon’ble Apex Court pointed out that section 50 of the Act serves the useful purpose. Communication to the accused is required to be made individually since, majority of the offences are strictly punishable under the NDPS act. In this case the interpretation of section 50 was made applicable in case the unlawful contraband was recovered from the accused’s luggage and non-compliance with the section would invalidate the trial.
In S.K. Raju v. State of West Bengal the accused was searched in the presence of gazette officer and charas was recovered from the jute bag carried by the accused person. The bench on considering the judgment laid down in Parmanand and Dilip cases concluded that the search not only covered the bag but also the personal search of the accused person, therefore, Section 50 would be triggered and applied. It was held since both the search was done in the presence of the gazetted officer therefore, section 50 of the Act was followed and hence, the three judge bench rejected the appeal.
CONCLUDING REMARKS
In the light of the discussion made hereinabove, it is evident that there has been a lot of back and forth on the issue of applicability of section 50 of the NDPS Act especially in cases of composite search. But one thing that is very important to note is that judgment of Baldev Singh has raised fundamental issue about the interpretation of the phrase “vehicle, etc.” in the subsequent decisions. In the author’s opinion section 50 of the Act should not be interpreted restrictively, rather the scope of interpretation of the section should be widened considering its avowed object of ensuring sanctity of search and seizure proceedings. The said section safeguards the right of an individual to be protected against the arbitrary actions of the law enforcement agencies which is guaranteed under Article 21 of the Indian Constitution therefore, the question which the term personal search raises should be answered authoritatively and the scope of personal search should be widened so as to prevent the individual from being the victim of abuse of law by the authorities. Till date there is no clear interpretation of the term personal search rather the entire jurisprudence of the said section is based on the phrase etc. used in the judgment of Baldev Singh.