Applicability of Section 50 of the NDPS Act in cases of Personal Search Only
The Supreme Court of India has recently ruled a judgement under section 50 of the Narcotic Drugs and Psychotropic Substances Act 1985 holding the opinion that the section 50 of the abovementioned act shall be applicable only in cases of personal search and thereby affirmed the conviction of an accused under the Act who was a temple priest.
Appealing on the judgement passed by the lower court, the accused had filed an appeal to the Apex Court of India, he raised contention about the non-compliance of section 50 of the NDPS Act 1985. Where according to him, the samples were handed over to an officer who himself gave the sample to another officer or carrying the same the Central Laboratory at Delhi and these seals remained with the Director, as such the chances of tampering could not be ruled out and also on the ground that the case of the prosecution was unnatural and improbable.
The Trial Court had earlier acquitted the accused on the abovementioned ground whereas the High Court had set aside the order of acquittal and convicted the accused.
The bench referred to the three-judge bench judgement in the State of H.P.vs. Pawan Kumar which considered the issue whether the safeguards provided by Section 50 of the NDPS Act 1985, regarding the search of “Any” person would also apply to any bag, briefcase or any other article or container being carried by him.
The court noted that the evidence on record established that the counter of the Dhaba (small restaurant) was constructed on the land owned by his wife near the temple and the “charas” was found in the counter of the dhaba in a gunny bag. The facts of the case show that the accused not only had direct physical control over charas but also had the knowledge of its presence and character.
However, taking note of the fact that the incident occurred in the year 2001 and that the accused claimed to be a priest in the temple, presently aged around 65 years, the bench in its final judgement modified the rigorous imprisonment from 15 years to 10 years.
What does Section 50 of the NDPS Act 1985 provide for?
Section 50 of the Narcotic and Psychotropic Substances Act 1985 provides for conditions under which search of persons shall be performed under the Act-
1. An officer duly authorized under Section 42 has undertaken search to any person under the provisions of Section 41,42 or section 43 if required shall without any excessive delay report to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the concerned Magistrate.
2. On the receipt of such requisition, the officer may detain such person until and unless such person could be produced before the Gazetted Officer or the Magistrate as per the provisions mentioned in 50(1).
3. The Gazetted Officer or the Magistrate in front of whom such person is produced shall, if finds no equitable ground for such search, shall have the power to discharge such person or otherwise shall pass orders directing the search to be conducted.
4. On the completion of search proceedings of the Act 1985, as per the provisions under 50(5), the officer shall be required to record reasons for his assessments and state reasons which demanded such search and shall compulsorily send a copy thereof to his immediate superior within seventy-two hours.
In the State of Himachal Pradesh vs Pawan Kumar, it was held that section 50 of the Act can have no application when the contraband was allegedly recovered from the bag, which was being carried by the accused. Additionally, it was observed that the Act doesn’t warrant or justify any extended meaning to the word “Person” occurring in the same person occurring in the same provision so as to include even some bag, article or container or some other baggage being carried by him.
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