2010 (10) TMI 934 - SC - Customs

Whether Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the NDPS Act ) casts a duty on the empowered officer to inform the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section? Held that - Appeals now, be placed before the appropriate Bench for disposal.Though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well. No hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.

Issues Involved
1. Interpretation of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
2. Compliance with the mandate of Section 50 of the NDPS Act.
3. The concept of "substantial compliance" with Section 50.
4. The procedural safeguards and the duty of the empowered officer under Section 50.

Detailed Analysis

1. Interpretation of Section 50 of the NDPS Act
The primary issue is whether Section 50 of the NDPS Act requires the empowered officer to "inform" the suspect of their right to be searched in the presence of a Gazetted Officer or a Magistrate, or if a mere inquiry about the suspect's preference suffices. The court noted a divergence in previous judgments, specifically between Joseph Fernandez Vs. State of Goa and Prabha Shankar Dubey Vs. State of M.P. on one side, and Krishna Kanwar (Smt) alias Thakuraeen Vs. State of Rajasthan on the other, regarding the interpretation of Section 50 as laid down in the Constitution Bench decision in State of Punjab Vs. Baldev Singh.

2. Compliance with the Mandate of Section 50 of the NDPS Act
The court examined whether the procedural safeguards under Section 50 were being effectively and honestly employed. It was argued that the statutory protection under Section 50(1) must be strictly observed to prevent abuse of power and false implications. The court emphasized that the suspect must be made aware of their right to be searched before a Gazetted Officer or a Magistrate, and mere inquiry does not fulfill this requirement.

3. The Concept of "Substantial Compliance" with Section 50
The court scrutinized the concept of "substantial compliance" as applied in previous judgments. It was argued that substantial compliance cannot negate the mandatory requirement of informing the suspect of their rights under Section 50. The court held that the decisions in Joseph Fernandez and Prabha Shankar Dubey, which endorsed substantial compliance, did not correctly interpret the law as laid down in Baldev Singh. The court reaffirmed that strict compliance with Section 50 is mandatory and failure to do so would render the recovery of illicit articles suspect and vitiate the conviction.

4. The Procedural Safeguards and the Duty of the Empowered Officer under Section 50
The court reiterated that the procedural safeguards under Section 50 are designed to check the misuse of power and ensure transparency. The empowered officer must inform the suspect of their right to be searched before a Gazetted Officer or a Magistrate. The insertion of sub-sections (5) and (6) in Section 50, which allow for immediate search under certain circumstances, does not dilute the mandate to inform the suspect of their rights. The court emphasized that this obligation is mandatory and requires strict compliance.

Conclusion
The court concluded that the obligation of the authorized officer under sub-section (1) of Section 50 of the NDPS Act is mandatory and requires strict compliance. The concept of "substantial compliance" is not supported by the language of Section 50 or the precedent set by Baldev Singh. The court recommended that suspects should preferably be produced before a Magistrate to ensure transparency and legitimacy in the search proceedings. The reference was answered accordingly, and the appeals were to be placed before the appropriate Bench for disposal.

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