Introduction

The Narcotic Drugs and Psychotropic Substances Act (NDPS Act) was enacted to consolidate and amend the laws about narcotic drugs. The Act provides stringent provisions to control and regulate operations concerning drugs and other such substances. It restricts and prohibits the manufacturing, cultivation, production, possession, sale, purchasing and consumption, etc. of any Narcotic Drugs and Psychotropic Substances.

Non-compliance with the mandatory provisions [Sec. (s) 42 & 50 of the Act]

The provisions contained under Sec. 42 and 50 of the Act are mandatory and any contravention of the same will vitiate the proceedings the accused person shall be released on Bail and it may also lead to acquittal in certain cases.

Sec. 42 of the NDPS Act provides protection and also lay down a procedure that is mandatory and must be followed strictly by the Investigating Officer. Compliance with the provisions of Sec.42 of the Act is mandatory and there cannot be an escape from its strict compliance.

Sec. 50 of the NDPS Act provides a condition under which a search of a person is to be conducted and if not complied with then it would be a violation of the imperative requirement of law, resulting in acquittal of the accused. Under the said provision a duty has been cast upon the authorized officer to search for a person, to inform him about the right provided u/s 50(1) of the Act i.e. the person is required to be taken to the Gazetted Officer or the nearest Magistrate for making such search.

Failure in compliance

Failure to inform the concerned person about the existence of such right to be searched before the Gazetted Officer or Magistrate would naturally prejudice the accused and hence, any conviction and sentence based on the recovery of contraband articles from the possession of the person concerned during the search conducted upon, the person cannot be sustained due to clear violation of the provisions of Sec. 50 of the Act. It is imperative on the part of the empowered officer to appraise the person intended to be searched of his right and to be searched before a Gazetted Officer or a Magistrate.

The requirement is mandatory and needs strict compliance, however, the law doesn’t specify that a notice under Sec. 50 of the Act has to be given in writing, but in cases where there is no public witness, in that event, at least the notice ought to be in writing to lend credibility to the prosecution version. In cases where the complete prosecution case consists of only police witnesses in that cases, the notice u/s 50 be given in writing.

Sec. (s) 42, 50 & 57 of the Act were drafted with the purpose, to put a check on the powers of the Investigating officers under the NDPS Act. If there is non-compliance with the said provisions of the Act, it must be held that at any rate the evidence of the Police Officer failing to comply with these provisions, cannot be relied upon implicitly to base the conviction.

Relevant judgments

In Karnail Singh v. State of Haryana, (2009) 8 SCC 539, the police officer did not record the information and failed to inform the official superior, which led to the violation of the provisions of Section 42 of the NDPS Act. The Apex Court observed that there was total non-compliance with Section 42 of the Act.

In another case of Boota Singh & others v. State of Haryana [Cr.A.No.421/2021] while relying on the judgments of the case Karnail Singh v. State of Haryana (SUPRA) and State of Rajasthan v. Jagraj Singh alias Hansa, (2016) 11 SCC 687 the Court held that total non-compliance of Section 42 is unacceptable in any circumstance. The Apex Court concluded that “The courts below fell in error in rejecting the submissions advanced on behalf of the appellants. We, therefore, allow this appeal, set aside the view taken by the High Court and acquit the appellants of the charge levelled against them.”

Conclusion

As discussed above, the provisions of Sec. 42 and 50 of the Act are mandatory provisions. Section 42 of the NDPS Act provides that an officer can legally search and arrest a person if he believes that the time that is required for a warrant will allow the person time to hide or destroy such contraband. Such reasons must be recorded by the officer before the search and inform the matter to his immediate superior within 72 hours.

Still, there is a lack of clarity on the scope of Section 50 of the NDPS Act in cases of “composite search”, i.e. when along with the bag/vehicle/receptacle of the accused, his body is also searched. In some of the judgments it was held by the Court that Section 50 would apply only to searches where recovery is made from the body of the accused and in some the courts 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.