Compliance of Section 50 NDPS Act mandatory; plea that accused waived off right by consenting to search by raiding party not sustainable: Del HC

Delhi High Court: A Single Judge Bench comprising of C. Hari Shankar, J. allowed a criminal appeal filed against the judgment of the trial court whereby the appellant was convicted under Section 18(b) of the Narcotic and Psychotropic Substances Act, 1985.

The appellant challenged his conviction contending the non-compliance of provisions of Section 50 of the Act. It was an admitted fact that after apprehending the appellant, he was searched by the raiding party in which opium was recovered from his possession. It is pertinent to note that as per Section 50, a person to be searched under Sections 41, 42 or 43 NDPS Act has to be searched in presence of a Gazetted Officer or a Magistrate. The prosecution, per contra, submitted that the appellant, before the search, was apprised of his right to be searched by a Gazetted Officer or a Magistrate; however, he waived off that right.

The High Court, for adjudication of the matter, perused the cases decided by the Supreme Court including Dilip v. State of M.P.,(2007) 1 SCC 450; State of Rajasthan v. Parmanand, (2014) 5 SCC 345 and Arif Khan v. State of Uttarakhand, 2018 SCC OnLine SC 459Relying on the said cases, the Court held that compliance with the provisions of Section 50 was mandatory. In the instant matter, it was held there was non-compliance with the said provisions and therefore the search and alleged recovery of opium was vitiated in toto. The appellant was, therefore, held to be entitled to an acquittal from all the charges. The appeal was allowed and the judgment impugned was set aside. [Dharambir v. State,2018 SCC OnLine Del 12305, dated 13-11-2018]

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