Introduction
The present matter, Nabi Alam v. State (Govt. of NCT of Delhi)[1] was referred to the Division Bench of the High Court of Delhi by the Single Bench of Justice Suresh Kumar Kaith, to settle a question which arose because of two conflicting judgments concerning the Narcotic Drugs and Psychotropic Substances Act, 1985[2] (hereon referred to as “the NDPS Act”), of the same court with regards to the “presence of a Magistrate or gazetted officer being mandatory during the process of search and seizure of illegal substances”.
The present situation can be analysed as:
i. Whether or not, in the present scenario can it be inferred that there was non-conformity of the absolutely binding provisions of Section 50[3] of the NDPS Act.
ii. If the accused chooses not to be searched before a Magistrate or gazetted officer, and the officer conducting the search goes ahead and makes personal search of the accused, would this be substantial compliance.
The main contention of the accused in the present petition was, that waiving off of their legal right is of no consequence for observance of Section 50 i.e. the right to their own personal search in attendance of either a Magistrate or a gazetted officer (from the departments enumerated under Section 42[4] of the NDPS Act), the officer leading the search must still strive to bring the accused/suspect in the company of either a gazetted officer (from the departments enumerated under Section 42 of the NDPS Act) or a Magistrate for conducting of the personal search.
Topics to discern:
- The Division Bench of the Delhi High Court on the issue.
- Scope of Section 50.
- Substantial compliance of Section 50.
- Supreme Court cases on the issue.
The Division Bench of the Delhi High Court on the issue
The para 26 of the judgment extracted, reads as under:
- For the sake of clarity it is held that, axiomatically, there is no requirement to conduct the search of the person, suspected to be in possession of a narcotic drug or a psychotropic substance, only in the presence of a gazetted officer or Magistrate, if the person proposed to be searched, after being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a gazetted officer or Magistrate categorically waives such right by electing to be searched by the empowered officer. The words “if such person so requires“, as used in Section 50(1) of the NDPS Act would be rendered otiose, if the person proposed to be searched would still be required to be searched only before a gazetted officer or Magistrate, despite having expressly waived “such requisition“, as mentioned in the opening sentence of sub-section (2) of Section 50 of the NDPS Act. In other words, the person to be searched is mandatorily required to be taken by the empowered officer, for the conduct of the proposed search before a gazetted officer or Magistrate, only “if he so requires“, upon being informed of the existence of his right to be searched before a gazetted officer or Magistrate and not if he waives his right to be so searched voluntarily, and chooses not to exercise the right provided to him under Section 50 of the NDPS Act.[5]
The High Court of Delhi has taken two specific phrases from Section 50:
- Section 50(1): If such person so requires.
- Section 50(2): Such requisition.
The High Court of Delhi has placed reliance on Vijaysinh Chandubha Jadeja v. State of Gujarat[6] and categorically stated that it is a settled position by the Supreme Court, that while it is mandatory to strictly comply with the provisions of Section 50, it is also observed that the accused person has been given a choice to practise this legal right and the person may choose to or not exercise that right.
Hence, according to the Court the ratio of Arif Khan v. State of Uttarakhand[7] does not provide any utility to the accused in the present scenario.
Scope of Section 50
From reading the provisions we can see that in the first instance there is a right provided to the accused which he/she can exercise by demanding to be presented before the officers mentioned in Section 50(1)[8], also that the officer concerned can detain the accused until the person can be presented before the Magistrate[9], a further reading will make it crystal clear as to why this right has been provided, as the next provision clearly stipulates that the officer concerned mentioned in Section 50(3) can either discharge the accused if he/she sees no reasonable ground to keep the accused or direct that search be taken of the accused[10].
This right has been provided to keep a check on frivolous cases, as the NDPS Act is an unforgiving piece of legislation and if the circumstance allows, and the Magistrate or gazetted officer thinks that there is no legitimate case against the accused, then he/she can be released immediately, because under the NDPS Act if a person is booked for intermediate or commercial quantity then preventive detention for such an alleged crime is extremely taxing, and moreover, getting bail is a problematic affair when it comes to the full satisfaction of court under Section 37[11] of the NDPS Act, a provision which has to be satisfied to get bail under commercial quantity and when charged with Sections 19[12], 24-A[13] & 27[14] of the Act.
In the same section, there is a provision which establishes the procedure to be followed, if such a person cannot be produced before a Magistrate without parting with the control of such illegal substances, in such a scenario the empowered officer can search the person according to Section 100 of the CrPC[15].
We can see here that Section 50 is providing a legal right to an accused against frivolous detention and arrest, and also casting a duty upon the empowered officer to strive to take the accused to the officers mentioned for the personal search of the accused.
A procedure is mentioned for a generic situation when the accused cannot be produced among such officers[16], but nowhere does the provision mention anything about completely bypassing this sacrosanct duty cast upon the empowered officer by simply getting a piece of paper signed (which could be done under duress), without any actual authenticity about waiving off of a legal right which can be done to avoid legitimate procedure.
Substantial Compliance of Section 50
What is substantial compliance
It is when an empowered officer does not follow the procedural safeguards provided under Section 50 of the NDPS Act, 1985, strictly, but rather follows them in part or in such a manner which is not totally transparent or flimsy, e.g., getting a paper signed about waiving off of the legal right to be searched in front of Magistrate or gazetted officer, without recording reasons for non-compliance.
Supreme Court has clarified in the Jadeja judgment[17] that the empowered officer who is conducting the search and seizure of illegal substances, must follow the procedure laid out under Section 50 to the letter, that after the empowered officer has satisfied the complete procedural safeguards, after that the accused person can use or not use their legal right afforded to them under Section 50.
It was in this case that the Supreme Court had finally rejected the substantial compliance theory, which was being followed as it was wrongly read into Section 50 by earlier judgments of Joseph Fernandes[18] and Prabha Shankar Dubey[19].
Supreme Court cases on the issue
To quote the Supreme Court judgment that the High Court of Delhi has utilised and relied upon in the present petition, which was Vijaysinh Chandubha Jadeja v. State of Gujarat[20], the observation made by the Supreme Court of India was:
The empowered officer must endeavour in the first instance to bring the said suspect among a Magistrate or a gazetted officer, this must be done in order to strengthen the case of the prosecution, as these officers enjoy much more confidence of the citizens, however, no hard and fast rule can be made but doing this would grant impartiality, authenticity, worthiness, transparency to the entire proceedings.
In Arif Khan[21] it was the prosecution’s version that the accused had “waived off his right and had consented to be searched by the police officials of the raiding party”, in which there was neither a Magistrate nor a gazetted officer.
The Supreme Court in para 24 of the judgment[22] has held that “this search and recovery does not fulfil the mandatory requirements of Section 50 as prescribed by the dictum laid down in Vijaysinh Chandubha Jadeja v. State of Gujarat[23]”.
Excerpt from para 24.4 of the same judgment[24] of the Supreme Court says that
It is absolutely mandatory for the prosecution to prove that when the recovery has been affected from the person of the accused, it must be proved to have been recovered in the presence of a Magistrate or a gazetted officer.
Conclusion
Preventive detention under the NDPS Act, 1985 is not a magnanimous process, getting bail under the NDPS Act, 1985 in a situation where Section 37 of the Act applies, is not just a hectic but a mentally taxing affair for the accused, as the time given for filing charge-sheet is 180 days in certain cases, which can be extended up to one year in exceptional circumstances and getting bail in NDPS cases is more difficult than UAPA cases[25] as the conditions under Section 37 are extremely stringent.
The right provided under Section 50 to the accused is a legal right given to protect against illegal arrest, but, there is also a duty which is being directed towards the empowered officer which would make the officer to comply with the provisions in a strict manner, we can also gather this by reading Arif Khan judgment[26] where the Court has held that there is a responsibility cast upon the empowered officer for presenting the accused amongst a Magistrate or gazetted officer for their personal search, this has been inferred by the Court because in the earlier judgment of Jadeja case[27], the Court has observed that the empowered officer must strive to bring the accused amongst a Magistrate or gazetted officer because these officers are much more trustworthy to the general public.
So, if the Supreme Court thinks that for search and seizure a Magistrate is much more trustworthy for the general public, then, how can an unnotarised, non-stamped piece of paper which has been signed only in the presence of a police officer stating the waiving of a legal right be trusted?
The Supreme Court in the recent case of Tofan Singh v. State of T.N.[28] has held that confessions given to the police under Section 67[29] of the NDPS Act, 1985 are non-admissible as evidence as they are given to “police officers” and the empowered officers under the NDPS Act, 1985 are “police officers”. This is another instance where documents signed in police presence are not deemed to be trustworthy and cannot be treated as evidence.
Moreover, Section 50 only specifically provides for the instance where the “person so requires” but does not expressly provide for a situation where the “person does not”, the Supreme Court has answered this question in Jadeja[30] and Arif Khan[31], in the Jadeja judgment the Supreme Court completely tossed aside the substantial compliance doctrine when it comes to search of a person, it was reaffirmed by Arif Khan judgment[32], the Supreme Court has categorically held in Arif Khan that it must be proved by the prosecution that the recovery of illegal substances from the person of the accused must be in the presence of a Magistrate or a gazetted officer, while the Delhi High Court has held a contrary view.
Given the extremely rigorous and uncompromising provisions of the NDPS Act, it is only natural to expect an elevated sense of probity, seriousness and genuineness from the empowered officer conducting the search and carrying out the duty as detailed by the legislation (Narcotic Drugs and Psychotropic Substances Act, 1985) as well as the observations of the Supreme Court in an uncompromising and scrupulous manner.
The Delhi High Court has perhaps not taken all the observations of the Supreme Court in the present matter into account, the judgment of the Delhi High Court needs reconsideration as there is clear conflict and it can be inferred in the present case that there was merely substantial compliance of Section 50, which has been torn down by the Supreme Court in cases of personal search of the suspect or accused, hence, there is probability of muddying the waters even further, there is also a likelihood that this judgment might lend the police wide scope for abuse of power, and provide an excuse to bypass the whole safeguard provided under Section 50.
† Advocate, Supreme Court of India and Delhi High Court
[2] <http://www.scconline.com/DocumentLink/206RMMRJ>.
[3] <http://www.scconline.com/DocumentLink/rMFC7htv>.
[4] <http://www.scconline.com/DocumentLink/93l1bvaf>.
[8] S. 50(1) of the NDPS Act, 1985: “When any officer duly authorised under S. 42 is about to search any person under the provisions of S. 41, S. 42 or S. 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 S. 42 or to the nearest Magistrate.”
[9] S. 50(2) of the NDPS Act, 1985: “If such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in sub-s. (1).”
[10] S. 50(3) of the NDPS Act, 1985: “The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.”
[11] <http://www.scconline.com/DocumentLink/2h286Qi4>.
[12] <http://www.scconline.com/DocumentLink/fY20H20h>.
[13] <http://www.scconline.com/DocumentLink/4mpCJN6g>.
[14] <http://www.scconline.com/DocumentLink/p7m2xO4X>.
[15] S. 50(5) of the NDPS Act, 1985: “When an officer duly authorised under S. 42 has reason to believe that it is not possible to take the person to be searched to the nearest gazetted officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest gazetted officer or Magistrate, proceed to search the person as provided under S. 100 of the Code of Criminal Procedure, 1973 (2 of 1974); <http://www.scconline.com/DocumentLink/DG2fI1tD>”.
[16] Ibid.
[17] Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609.
[18] Joseph Fernandes v. State of Goa, 1995 SCC OnLine Bom 504
[19] Prabha Shankar Dubey v. State of M.P., (2004) 2 SCC 56
[22] Arif Khan, (2018) 18 SCC 380.
[24] Arif Khan, (2018) 18 SCC 380.
[25] Union of India v. K.A. Najeeb, (2021) 3 SCC 713, para 20.
