Delhi High Court: In a case wherein an appeal was filed by the State against the impugned judgment passed by the Special Judge under Sections 22, 23, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), a Single Judge Bench of Anish Dayal, J. upheld the judgment passed by the Special Judge wherein bail was granted to a Spanish National as he was not given the opportunity of a translator or an interpreter and the mandatory requirements under Section 50 of the NDPS Act were not complied with. Further, the Court held that the refusal by the accused to get a search conducted before a Gazetted Officer or a Magistrate would, therefore, be vitiated on account of the accused’s part understanding/ misunderstanding/ misinterpretation or even miscommunication of the questions put to him and/or his response.
Background
The accused-respondent was a Spanish National who was staying in some hotel at Paharganj and indulged in procuring and export of Ketamine, a psychotropic substance to foreign countries by courier. During the raid, 4 kgs of Ketamine were recovered from the rucksack being carried by the accused. The Special Judge held that though prosecution had been able to establish that 4 kgs of Ketamine was recovered from conscious possession of the accused, however, the recovery stood vitiated as mandatory procedural safeguards laid down in Section 50 of the Act were not complied with. Therefore, the accused was acquitted of all charges.
Submissions on behalf of the Accused-Respondent
Counsel for the accused-respondent submitted that the accused was a foreign national and was arrested in 2013 and remained in incarceration till his acquittal in 2019 and was unable to go back to his home country due to the pendency of this suit.
Analysis, Law, and Decision
The Special Judge noted that it was mentioned to the accused that it was his legal right to get his search conducted in the presence of a Gazetted Officer or a Magistrate by either calling such Magistrate/Gazetted Officer or by being taken before them; if he so desired. But the accused said that he did not want to be searched in the presence of a Gazetted Officer or a Magistrate. The Special Judge opined that the accused was a Spanish National on a temporary tourist visa and since he was informed of his rights in English, he would have not been able to understand the scope of his legal rights in any other language than Spanish. Therefore, the Special Judge held that the accused’s refusal of his legal rights under Section 50 of the NDPS Act was not on his conscious volition but on the lack of understanding the scope of his rights under the NDPS Act.
This Court noted that as per the record of this Court, it was evident that the accused did not know English as this Court had directed that the accused should be supplied with an official translator who knew Hindi, English and Spanish. Further, the Court noted that the accused’s writing on the notice under Section 50 of the NDPS Act was clumsy and forced.
The Court held that it was evident that the accused did not have the opportunity of a translator or an interpreter at a stage when he was accosted, and the search was conducted, and scope of his legal rights were attempted to be explained to him under the framework of Section 50 NDPS Act in English language. Therefore, the alleged refusal by the accused to get a search conducted before a Gazetted Officer or a Magistrate would be vitiated on account of his part understanding/ misunderstanding/ misinterpretation or even miscommunication of the questions put to him and/or his response.
The Court dismissed the petition as it was apparent that the accused was not able to understand the importance of what was being communicated to him and the impact on his life.
[State v. Denis Jauregul Mendizabal, 2022 SCC OnLine Del 4549, decided on 22-12-2022]
Advocates who appeared in this case :
For the Petitioner: APP Narinderjit Singh Bawa;
Advocate Shivesh Kaushik;
For the Respondent: Advocate Kaushal Jeet Kait;
Advocate Kritagya Kumar Kait;
Advocate Rishav Kashyap.
