To Search or Not to Search: The Unceasing Confusion Surrounding Section 50 of NDPS Act

Part I

The “Fruit of the Poisonous Tree” doctrine lays down the rule that evidence obtained in violation of the procedure established by law is inadmissible in court. While originating in the American legal system, this rule continues to be actively followed in American jurisprudence. However, common law jurisdictions such as the United Kingdom and India have generally been loath to adopt this doctrine. Under Indian law, the admissibility of evidence is determined based on its relevance.¹ Nevertheless, certain limited areas of the Indian legal system incorporate the spirit of the “poisonous tree” doctrine. For instance, Sections 24², 25³ and 26⁴ of the Evidence Act, 1872 have been interpreted as embodying the spirit of the “poisonous tree” doctrine.⁵ In Selvi v. State of Karnataka⁶, the Supreme Court relied on the “poisonous tree” doctrine to declare narcoanalysis and polygraph tests as unconstitutional.

A derivative of this doctrine is enshrined in Section 50⁷ of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). This provision has been included in the statute with a protective intent against malicious prosecution, especially keeping in view the stringent nature of the penal provisions under the NDPS Act. In absence of this safeguard, it would be difficult to determine whether the contraband was actually seized from the person of the accused or merely planted on his body to be used later on as evidence against him in a court of law.

In State of Punjab v. Baldev Singh⁸, a Constitution Bench of the Supreme Court discussed the object behind this provision and held that:

25. …It appears to have been incorporated in the Act keeping in view the severity of the punishment. The search before a Gazetted Officer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also verily strengthen the prosecution case.

26. Personal search, more particularly for offences under the NDPS Act, are critical means of obtaining evidence of possession and it is, therefore, necessary that the safeguards provided in Section 50 of the Act are observed scrupulously.

Similarly, in Vijaysinh Chandubha Jadeja v. State of Gujarat⁹, another Constitution Bench held that “the object of Section 50(1) of the NDPS Act is to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies”.

Ever since the enactment of the NDPS Act, there appears to be a persistent confusion surrounding the interpretation of Section 50. The crux of the issue lies in the differing interpretations with respect to the procedure to be followed when search is to be conducted qua the body of a suspect. At present, the settled law appears to be that the authorised officer is duty-bound to inform the suspect of his right to be produced before a Gazetted Officer or Magistrate for the purposes of the search to be conducted on his body.¹⁰ It is important to distinguish at this juncture the difference between informing the accused of the “option” available before him and informing him about the “right” available to him in terms of Section 50. Merely informing the accused about the option of having the search conducted before a Gazetted Officer or a Magistrate will fail to meet the compliance threshold as mandated under Section 50. Only when it is categorically conveyed to the suspect of his right to be searched before a Gazetted Officer or a Magistrate that compliance with Section 50 can be considered to be fulfilled.¹¹

In this context, it is perplexing that a 2-Judge Bench of the Supreme Court in Arif Khan v. State of Uttarakhand¹² has without adverting to any reasons and in contradiction of the settled law held that all searches to be made on the person of the suspect must be conducted in the presence of a Magistrate/Gazetted Officer. The ratio as laid down in Arif Khan case¹³ has subsequently been relied upon by various High Courts to acquit/grant bail to offenders who were not searched before a Magistrate or a Gazetted Officer despite the fact that they had willingly waived-off their right. The judgment as delivered in Arif Khan case¹⁴ is in the respectful view of this author per incuriam as it has been pronounced without providing due reasons and is in the teeth of the settled position of law as declared by the two Constitution Benches.¹⁵

Part II

Before undertaking a holistic study of the issues as referred to hereinbefore, it would be relevant to reproduce sub-section (1) of Section 50 of the NDPS Act.

50. Conditions under which search of persons shall be conducted.— (1) When any officer duly authorised under Section 42¹⁶ is about to search any person under the provisions of Sections 41¹⁷ and 42 or Section 43¹⁸, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (emphasis supplied)

Section 50 is a procedural provision that lays down the manner in which the search of a person suspected of carrying contraband substances is to be conducted. A bare reading of the provision makes it abundantly clear that the officer conducting the search shall apprise the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, and thereafter if such person so requires, produce him forthwith before a Gazetted Officer or a Magistrate.

At this juncture, it would be convenient to summarise the controversy which has arisen post the judgment delivered in Arif Khan case¹⁹ as to:

Whether an authorised officer conducting search on the body of a person is merely obligated to apprise him of his right to be searched before a Magistrate/Gazetted Officer and seek his view thereon or is he duty-bound to produce him before a Magistrate/Gazetted Officer, irrespective of the fact whether the suspect has waived such right or not?

The necessity for the present discussion arises from the miscarriage of justice which has occasioned post Arif Khan case²⁰ as offenders, who would otherwise have been convicted, are being acquitted based on the erroneous interpretation of the provision as contained in Section 50. The Delhi High Court in Sikodh Mahato v. State²¹ relied on Arif Khan case²² to acquit the appellant as the search on his body was not conducted in the presence of a Magistrate or a Gazetted Officer despite the fact that the appellant had declined in writing the right available before him to be searched before a Magistrate/Gazetted Officer.

In Sumit Rai v. State²³, once again relying upon Arif Khan case²⁴, the Delhi High Court acquitted the appellant who had himself waived-off his right to be searched in the presence of a Magistrate or a Gazetted Officer. Thereafter, in Vaibhav Gupta v. State²⁵, the Court relied on Arif Khan case²⁶ to hold that the investigating officer failed to comply with the mandatory requirements of Section 50 and hence, enlarged the accused on bail. Similarly, the Punjab and Haryana High Court in Akash Garg v. State of Punjab²⁷ passed a judgment of acquittal by placing reliance on Arif Khan case²⁸.

Per contra, in Innocent Uzoma v. State²⁹, the Delhi High Court took a different approach and refused to accept the appellant’s contention that the procedural requirements under Section 50 of the Act, as interpreted in Arif Khan case³⁰, had not been fulfilled even though the accused himself had declined the offer by the investigating officer to be searched before a Magistrate/Gazetted Officer. In Innocent Uzoma case³¹, after undertaking an exhaustive study of the binding precedents, the Court rightly arrived at the conclusion that the ratio as laid down in Arif Khan case³² was not a binding precedent. The view taken in Innocent Uzoma case³³ was later upheld by a Division Bench of the High Court in Nabi Alam v. State (NCT of Delhi)³⁴.

To understand why the ratio of Arif Khan case³⁵, as contained in para 24 of that judgment, is not in line with the object of the statute or the judicial interpretations, we must advert to the two Constitution Bench judgments concerning Section 50 of the NDPS Act.

In State of Punjab v. Baldev Singh³⁶, a Constitution Bench of the Supreme Court was constituted to address and harmonise the inconsistencies in the judgments as laid down by different Benches with regard to the ambit and scope of Section 50. The Bench categorically held that:

24. … it is an obligation of the empowered officer and his duty before conducting the search of the person of a suspect, to inform the suspect that he has the right to require his search being conducted in the presence of a Gazetted Officer or a Magistrate. The failure to so inform the suspect of his right would render the search illegal because the suspect would not be able to avail of the protection which is inbuilt in Section 50. Similarly, if the person concerned requires, on being so informed by the empowered officer or otherwise, that his search be conducted in the presence of a Gazetted Officer or a Magistrate, the empowered officer is obliged to do so’.

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32. … The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a Gazetted Officer or a Magistrate, if he so requires, is sacrosanct and indefeasible — it cannot be disregarded by the prosecution except at its own peril. (emphasis supplied)

Thereafter, owing to the persisting confusion concerning the procedure to be followed for searches made under Section 50, another Constitution Bench was constituted in Vijaysinh Chandubha Jadeja case³⁷ wherein the Bench unanimously reiterated the position as laid down in Baldev Singh case³⁸ and held that:

The empowered officer is bound to apprise the person intended to be searched of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or a Magistrate. (emphasis supplied)

The Bench further held that:

…it is not necessary that the information required to be given should be in a prescribed form or in writing, but it is mandatory that the suspect is made aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so, required by him and this mandatory provision requires strict compliance. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.³⁹ (emphasis supplied)

The Court also observed that:

32. … in order to impart authenticity, transparency, and creditworthiness to the entire proceedings, in the first instance, an endeavour should be made 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.⁴⁰

The law as laid down in Baldev Singh case⁴¹ and Vijaysinh case⁴² was thereafter followed in several judgments including in Myla Venkateswarlu v. State of A.P.⁴³, Ashok Kumar Sharma v. State of Rajasthan⁴⁴, State of Rajasthan v. Parmanand⁴⁵ and Sekhar Suman Verma v. Narcotics Control Bureau⁴⁶ until in Arif Khan case⁴⁷ wherein a 2-Judge Bench of the Supreme Court while dealing with an appeal from the High Court of Uttarakhand held in para 24.4 of the judgment that “it is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer”. In other words, Arif Khan case⁴⁸ made it absolutely mandatory for the authorised officer to present the suspect before a Magistrate/Gazetted Officer before conducting search on his body, irrespective of the fact whether the suspect had waived-off the right available to him. The Court arrived at this incongruous conclusion even after referring to the ratio as laid down in Baldev Singh case⁴⁹ and Vijaysinh case⁵⁰.

The judgment in Arif Khan case⁵¹ has opened a pandora’s box as many High Courts have incorrectly relied on this judgment, and held that for strict compliance with Section 50, it is mandatory to produce the suspect before a Magistrate or a Gazetted Officer before conducting a personal search.

Part III

It is the author’s view that the judgment delivered in Arif Khan case⁵² is per incuriam as it lays down an incorrect interpretation of the mandate as contained in Section 50, and it is apparent that the Bench has arrived at the conclusion without duly appreciating the interpretation as laid down in Baldev Singh case⁵³ and Vijaysinh case⁵⁴. The doctrine of stare decisis et non quieta movere, which means “to stand by decisions and not to disturb what is settled” is incumbent upon all subsequent coordinate and smaller Benches. Yet, in Arif Khan case⁵⁵, the Court without duly appreciating the binding precedents has proceeded to essentially rewrite the mandate as contained in Section 50.

Halsbury’s Laws of England, 3rd Edn., Vol. 22, para 1687, pp. 799-800 describes per incuriam as:

The Court is not bound to follow a decision of its own if given per incuriam. A decision is given per incuriam when the Court has acted in ignorance of a previous decision of its own or of a court of a coordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords. In the former case it must decide which decision to follow, and in the latter, it is bound by the decision of the House of Lords.

In State of U.P. v. Synthetics and Chemicals Ltd.⁵⁶, the Supreme Court discussed the implication of a judgment which has been passed per incuria:

40. “Incuria” literally means “carelessness”. In practice per incuriam appears to mean per ignorantiam. English courts have developed this principle in relaxation of the rule of stare decisis. The “quotable in law” is avoided and ignored if it is rendered, “in ignorantiam of a statute or other binding authority”. (Young v. Bristol Aeroplane Co. Ltd.⁵⁷) Same has been accepted, approved, and adopted by this Court while interpreting Article 141⁵⁸ of the Constitution which embodies the doctrine of precedents as a matter of law. (emphasis supplied)

In para 4 of Arif Khan case⁵⁹, the Court has recorded that the accused after being apprehended by the police officials, was duly apprised of his legal right to be searched in the presence of a Gazetted Officer/Magistrate to which the accused consented in writing to be searched by them. Thereafter, in para 22, after summarising the arguments as preferred by the parties respectively, it was held that “In our considered view, the evidence adduced by the prosecution neither suggested and nor proved that the search and the recovery was made from the appellant in the presence of either a Magistrate or a Gazetted Officer.” This is reiterated in para 24.2 and followed by the conclusion as contained in para 24.4 — “It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer.” It is curious to note that despite relying upon Baldev Singh case⁶⁰ and Vijaysinh case⁶¹, no reasons whatsoever have been adverted to, for arriving at the conclusion that all searches as made under Section 50 have to be mandatorily conducted before a Magistrate/Gazetted Officer irrespective of the fact whether the accused chooses to waive-off such right. The author is of the view that the judgment in Arif Khan case⁶² has been rendered sub silentio as it is completely silent on the aspect of diverging from the settled law which merely requires informing the accused of his right to be searched before a Magistrate/Gazetted Officer.

It is well settled that the doctrines of per incuriam and sub silentio operate as exceptions to the doctrine of stare decisis, ergo a ruling which has been delivered in ignorance of binding precedents and further, without delving into any reasoning for arriving at a differing conclusion is not a binding precedent and cannot be said to be the law of the land as laid down under Article 141 of the Constitution.⁶³ A decision or judgment whose ratio cannot be reconciled with that of a previously pronounced judgment of a coequal or larger Bench is held to be per incuriam.⁶⁴ It is apparent from the foregoing discussion that the judgment delivered by a 2-Judge Bench of the Supreme Court in Arif Khan case⁶⁵ is without due appreciation of the binding precedents and without due respect to the doctrine of stare decisis and hence is per incuriam. It is quite baffling that on review, Their Lordships failed to appreciate the error apparent in Arif Khan case⁶⁶ and upheld the judgment in its entirety.⁶⁷

Conclusion

Lord Coke described the doctrine of stare decisis as “those things which have been so often adjudged ought to rest in peace”. However, the judgment in Arif Khan case⁶⁸ goes against this well-established principle of law by effectively rewriting the statute as enacted by the legislature and interpreted by various larger Benches of the Supreme Court. Moreover, the reliance being placed upon Arif Khan case⁶⁹ by various High Courts not only creates a conflict in law but also hinders the pursuit of justice, defeating the very objects for which the NDPS Act was enacted.

While there is no gainsaying that the High Courts and subordinate judiciary are not bound to follow the law as laid down in Arif Khan case⁷⁰ considering its inconsistency with authoritative pronouncements of earlier larger and Coordinate Benches,⁷¹ nevertheless, in the humble view of the author, it is imperative to put the controversial ruling of Arif Khan case⁷² to rest once and for all. A categorical declaration by a larger Bench of the Supreme Court clarifying the parameters for compliance with Section 50 will go a long way in effective adjudication qua violations of the NDPS Act. Additionally, it will also reinforce the importance of consistency and uniformity in judicial pronouncements.