2010 (10) TMI 934 - SC - Customs

Informing suspects of right to Gazetted Officer or Magistrate search under NDPS Section 50(1) held mandatory; convictions vitiated

Section 50(1) NDPS Act was interpreted to determine whether an empowered officer must expressly inform a suspect of the right to be searched before a ... Interpretation of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) - concept of 'substantial compliance' - Whether Section 50 of the NDPS Act, casts a duty on the empowered officer to `inform' the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section? Held that:- We are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. 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, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed in Re Presidential Poll [1974 (6) TMI 59 - SUPREME COURT], it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. The concept of “substantial compliance” with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez [1999 (10) TMI 703 - SUPREME COURT] and Prabha Shankar Dubey [2003 (12) TMI 589 - SUPREME COURT], is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case [1999 (7) TMI 630 - SUPREME COURT]. Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be 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. Accordingly, we answer the reference in the manner aforesaid. The appeals shall, now, be placed before the appropriate Bench for disposal. Issues: (i) Whether an empowered officer under Section 50(1) of the NDPS Act is obliged to inform the person intended to be searched of his right to be searched in the presence of a Gazetted Officer or a Magistrate, or whether a mere enquiry asking the suspect if he wishes to be so searched constitutes due compliance.Analysis: The question concerns the scope of the expression 'if the person to be searched so requires' in Section 50(1) of the NDPS Act and the nature of the duty imposed on the empowered officer. The Constitution Bench conclusions in Baldev Singh require that the person be made aware of the existence of the right to be taken before a Gazetted Officer or Magistrate; the information need not be in writing but must communicate the existence of the right. Subsequent decisions endorsing 'substantial compliance' were examined and found inconsistent with the requirement that the suspect be apprised of the right. The statutory scheme including subsections (5) and (6) (emergency exception and obligation to record/send reasons) was considered, but these do not obliterate the primary obligation to inform; they only provide limited flexibility in genuine emergencies and mandate subsequent judicial scrutiny of recorded reasons.Conclusion: The empowered officer is under a mandatory duty to inform the person intended to be searched of the existence of his right under Section 50(1) to be taken before a Gazetted Officer or a Magistrate; a mere enquiry whether the suspect wishes to be searched in the presence of such officers does not amount to due compliance. Failure to comply renders any recovery suspect and may vitiate conviction based solely on such recovery.Ratio Decidendi: Section 50(1) of the NDPS Act mandates strict compliance requiring that the suspect be made aware of his right to be taken before a Gazetted Officer or Magistrate; absence of such informing vitiates recoveries founded solely on searches conducted in violation of that duty, subject only to narrowly confined emergency exceptions under subsections (5) and (6).