One of the most important provisions under the Narcotic Drugs & Psychotropic Substances Act, 1985 (“the Act”), is the statutory right granted to a person suspected of possessing any narcotic drug or psychotropic substance to be searched before a Gazetted Officer or Magistrate under Section 50 of the Act. In a stringent statute, it is a vital protection to an accused.
Despite a plethora of judgments, there is still lack of clarity on the scope and applicability of Section 50 of the Act in cases of “composite search”, i.e. when along with the bag/vehicle/receptacle of the accused, his body is also searched. While some judgments (discussed hereinafter) hold that Section 50 would apply only to searches where recovery is made from the body of the accused (and not when recovery is made from the bag/vehicle/receptacle belonging to the accused), others1 have held that even if the recovery is made from the bag/vehicle/receptacle of the accused, if his body is searched, Section 50 will apply.
The present article examines and analyses this conflict of views.
Section 50(1) of the Act 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 the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
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† Sidharth Luthra, Senior Advocate and former Additional Solicitor General of India.
††Kunal Mimani, Advocate on Record, Supreme Court of India and Deputy Head at BlackRobe Chambers.
*The article has been published with the kind permission of Eastern Book Company. Cite as (2021) 1 SCC J-1 .
As sec 50 applies for personal body search, then can you please mention what is the section that applies for search of Baggage and container.