This article is written by Amrit Kaur, from Dr B.R. Ambedkar National Law University, RAI, Sonepat. The article examines Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Table of Contents
Introduction
Section 50 of the Narcotic Drugs and Psychotropic Substances Act of 1985 (NDPS Act) has always been the ultimate goal of every defence argument counsel in cases stemming from the Act. This Section has traditionally drawn a razor’s edge between acquittal and conviction.
Indeed, the legal position of this Section has always been in flux. In this article, we will try to understand more about Section 50, but first, we will be having a look at the NDPS Act and then will move onto the Section and its important judgments.
The Narcotic Drugs and Psychotropic Substances Act, 1985
In India, the Opium Act of 1857 is credited with establishing drug control legislation. The Opium Act of 1878 and the Dangerous Drugs Act of 1930 followed thereafter. These laws were intended to control and monitor the use of specific drugs in certain cases; they were not founded on any well-defined principles and did not include any overarching measures to address the problem of drug misuse as a whole. Furthermore, they allowed for modest penalties for their violations, such as three years’ prison time for first-time offenders and four years’ prison time for repeat violators. Following World War II, countries began to collaborate on establishing human rights instruments that would allow individuals to live with dignity and respect.
Article 25 of the Universal Declaration of Human Rights and Article 12 of the International Covenant on Economic, Social, and Cultural Rights, which seek to promote the highest attainable mental health standards, are the clearest manifestations of this general principle in the context of health. Against this backdrop, various international treaties, such as the 1961 Single Convention on Narcotic Drugs and, more crucially, the 1971 Convention on Psychotropic Substances acknowledged the necessity for regulatory regimes and methods to combat drug addiction. The National Drugs and Psychotropic Substances Act, 1985 was thereby created by the Government of India to bring India’s drugs control law up to international standards and carry out these treaties’ objectives.
The Act is commonly considered as a prohibitionist law that aims to combat two types of crimes: trafficking in forbidden drugs, i.e., cultivation, production, distribution, and sale as well as their consumption.
Cases related to the charges defined in the Act were handled by traditional Sessions Courts when the NDPS Act was in its infancy. However, this worsened the long-standing problem of judicial overburdening in Indian courts. To address this issue, the Government of India amended the NDPS Act in 1989, allowing for the formation of specialized courts to deal with the Act’s offences. Therefore, the government has the authority under Section 36 of the Act to establish as many special courts as it finds suitable for the quick settlement of disputes.
When matters are referred to it, a special court has the same authority as a magistrate. The special court has the competence to take cognizance of any offence under the Act based on a report presented to it by the appropriate police authority or a complaint filed by officers of the central or state governments who are authorized to make such complaints.
The amount of penalty under the NDPS Act is determined by the number of drugs found, which is categorized into three categories: small, less than commercial, and commercial. As a result, the sentence might range from rigorous imprisonment for one year, if a small quantity of narcotics is found, to as much as 20 years in prison for a significant quantity of drugs found. It is to be noted here that the Central Government has specified the amount of small and commercial quantities.
The Department of Social Welfare has been designated as the nodal agency in charge of monitoring the activities conducted by various organizations, both public and private, to raise awareness about the harmful effects of drug abuse. The Narcotics Control Bureau is a central organization entrusted with supervising the operations of various law enforcement agencies and ensuring continual compliance with numerous international treaties that India has signed.
Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985
Section 50 of the Narcotic and Psychotropic Substances Act of 1985 specifies the conditions under which a person may be searched as per the provisions of the Act. It serves as a protection against the abuse of authority, the harming of innocent people, and the claims of law enforcement authorities fabricating or imposing false charges. To put it in another way, fairness and transparency in the search process have been given top priority under the Section.
Subsection (1) to the Section states that when an authorised officer is going to search an arrested person, he must take him without any undue delay to the nearest gazetted officer or the magistrate if the person to be searched so desires. Subsection (2) states that if the arrested individual makes such a request, the authorised officer may detain him until he is taken before the gazetted official or the magistrate. Subsection (3) states that if the apprehended person is brought before a gazetted officer or a magistrate and the gazetted officer or magistrate determines that there are no reasonable grounds for conducting the search, he shall immediately discharge the person to be searched or otherwise, he shall direct the search on that person.
Sub-section (4) of Section 50 states that only a female officer may conduct a personal search of a female. This rule is analogous to Section 51(2) of the Code of Criminal Procedure, 1973, which states that whenever it is required to search a female, the search must be conducted by another female while maintaining strict decency. Subsections (5) and (6) stipulate that if the authorised officer has grounds to believe that he would be unable to take the arrested person to the nearest gazetted officer or the magistrate, he may search the person and record the reasons in writing for doing so. Within 72 hours, a copy of that report must be submitted to his immediate superior.
Therefore, in other words, Section 50 is obvious and precise, if the person to be searched expresses a wish to be taken to the nearest gazetted officer or magistrate, he cannot be searched until the gazetted officer or Magistrate, as the case may be, instructs the authorised officer to do so.
The judgements
The following are some of the important judgements related to Section 50 of the Act in chronological order:
State of Punjab v. Baldev Singh (1999)
In this case, the Supreme Court of India concluded that the right to be searched before a gazetted officer or magistrate is an extremely valuable right that Parliament has provided to an accused, given the serious consequences that possessing illegal items under the Act may entail. The Court further noted that such a search provides the search and seizure procedure far greater credibility and legitimacy. The Constitution bench in this case, therefore, held that personal search under the Act is a crucial way of collecting evidence of possession, thus the safeguards provided in Section 50 must be strictly followed. It was also ruled that non-compliance with Section 50 would invalidate the conviction of the accused.
State of Himachal Pradesh v. Pawan Kumar (2005)
In this case, a three-judge bench of the Supreme Court of India considered whether the protections given by Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, governing searches of people also extended to bags or other similar items carried by such people.
The hon’ble three-judge bench went on to say that a bag or other similar object cannot be considered as a human body under any circumstances. This was because a person carries such articles based on his physical ability and because carrying such articles involves additional effort and energy, it was determined that such articles cannot be included within the scope of the person as defined under Section 50 of the Act.
Dilip v. State of Madhya Pradesh (2006)
In this case, 5 kg 890 grams of opium hidden in a scooter, was seized from the riders of the scooter. The aforementioned individuals were arrested, but the learned Sessions Judge acquitted them because the mandatory statutory conditions of Section 50 of the Act had not been complied with. The verdict was then overturned by the Madhya Pradesh High Court (Gwalior Bench), and the case was thus taken to the Supreme Court.
The Supreme Court held that “it is now well settled that the offence committed under the Act is a grave one. Procedural safeguards provided therefore in terms of Section 41, 42 and 50 of the NDPS Act should be complied with”.
The Supreme Court relied heavily on an earlier decision by a Constitution Bench in State of Punjab v. Baldev Singh, which ruled that where Section 50 provisions were invoked, compliance was necessary. The Supreme Court, therefore, overturned the High Court’s decision and ordered the appellant to be released immediately.
Vijaysinh Chandubha Jadeja v. State of Gujarat (2010)
In this case, another constitutional bench of the Supreme Court held that the provisions of Section 50 of the Act are mandatory and must be strictly followed and that failure to do so would make the recovery of the illicit article suspicious and invalidate the conviction if the only basis for conviction is the recovery of the illicit article from the accused during a search.
State of Rajasthan v. Parmanand & Anr. (2014)
In this case, opium weighing 9 kg 600 grams was discovered in the responders’ bag, which was also checked along with the search on those individuals. A joint notice under Section 50 of the Act was issued on them before conducting the search, informing them of their legal right to be searched in the presence of a gazetted officer or a magistrate. While the second respondent had given his written consent to be searched by the raiding team, the first respondent had neither signed the body of the notice nor given his consent.
The Supreme Court held that a combined communication of the right available under Section 50(1) of the NDPS Act to the accused would undermine the entire purpose of Section 50. Communication of the aforementioned right to the individual who is about to be searched is not an empty formality. It serves a useful purpose. The majority of offences under the NDPS Act carry stringent punishment and, thus, the prescribed process must be followed meticulously.
The interpretation of this case indicates that if unlawful contraband was recovered from the accused’s luggage, Section 50 of the Act would apply, and non-compliance with the section would invalidate the trial.
S.K Raju v. State of West Bengal (2018)
In this case, the accused was found guilty by the Sessions Court, and the conviction was affirmed by the High Court. An appeal was filed with the Supreme Court, which was allowed and heard by a three-judge bench. In this case, the accused was searched in the presence of a gazetted officer. During the search, charas was discovered inside a black polythene packet that was hidden inside the accused’s jute bag. The bench considered the decisions in Parmanand and Dilip cases, (which have been talked about above) and concluded that because the search covered not only the bag which the accused was carrying but also the accused’s person, therefore Section 50 would be triggered and applied. Since both the person and the luggage were searched in the presence of the gazetted officer, the bench concluded that the provisions of Section 50 had been followed and rejected the appeal.
Conclusion
Considering the Supreme Court’s various decisions, it is unmistakably evident that Section 50 must be followed. The scope of the provision is still unclear as to whether goods brought by the accused person are subject to the provisions of Section 50. In the Pawan Kumar case, a three-judge bench held that articles carried by the person would not be included in the search under Section 50, while in the S.K Raju case, a three-judge bench found that Section 50 would apply if both an article carried by the accused and his person were searched. As a result, there is a need to clarify the scope of what would be included in a search under Section 50.
References
- https://blog.ipleaders.in/a-detailed-analysis-of-the-national-drugs-and-psychotropic-substances-act/
- https://www.scconline.com/blog/post/2021/05/20/applicability-of-section-50-of-the-narcotic-drugs-and-psychotropic-substances-act-1985/
- https://www.indialegallive.com/top-news-of-the-day/news/ambit-of-section-50-critique-whether-there-is-a-need-to-re-determine-the-ambit/
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