38.6c New Delhi, India, Tuesday, May 21, 2024

Presence Of Magistrate Or Gazetted Officer Mandatory For Search Under NDPS Act, Even If Accused Refuses The Offer: Delhi HC [Read Judgment]

By LawStreet News Network      30 July, 2019 06:07 PM      0 Comments
Presence Of Magistrate Or Gazetted Officer Mandatory For Search Under NDPS Act, Even If Accused Refuses The Offer: Delhi HC [Read Judgment]

The Delhi High Court on July 29, 2019, in the case of Sumit Rai @ Subodh Rai v. State has reiterated that search of an accused under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, has to be conducted, mandatorily in the presence of a Magistrate or Gazetted Officer even if the accused refuses the offer in this regard.

A single judge Bench of Justice C. Hari Shankar was hearing an appeal filed against the order of conviction passed by the Additional Sessions Judge wherein the court convicted the appellant under Section 20(C) of the NDPS Act on being found in possession of 100 kg ganja (cannabis). Aggrieved by the order of conviction, the appellant pursued the present appeal on grounds of unfair search procedure.

The respondent-prosecution contended before the court that the appellant was informed that he had a right to have his search carried out in the presence of a Magistrate under Section 50 of the NDPS Act. However, the appellant declined the offer, whereupon the search of the appellant was carried out by the Investigating Officer and thus such a plea was unfounded, the state submitted.

The respondent relied on the Supreme Court judgment in Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609, wherein it was held that if the accused gave his consent in writing to be searched by the police officials despite telling him about his legal right available under Section 50, the requirements of Section 50 stood fully complied with.

However, the court held that the search pursuant to which narcotics were recovered was to be done mandatorily in the presence of a magistrate. This requirement could not be done away with even if the accused refused the offer.

Reliance was placed on the Supreme Court verdict in Arif Khan v. State of Uttarakhand, AIR 2018 SC 2123, which had a similar factual matrix, to substantiate that "failure to comply with Section 50 of the NDPS Act is fatal to the case of the prosecution, which stands vitiated, in its entirety.”

The court, therefore, acquitted the appellant by setting aside the order passed by the learned ASJ.

[Read Judgment]

Share this article:

User Avatar

Leave a feedback about this

Trending Judiciary
Cannot Allow the Game of Hide and Seek for Committing Murder of an Unborn Child: MP High Court [Read Order]

MP High Court denies abortion for minor rape victim, condemns misuse of legal authority to terminate pregnancy and prevent justice.

20 May, 2024 03:52 PM
Trending Judiciary
Pune Porsche Hit & Run: Bail Granted to 17 Year Old in Under 14 Hours, Asked to write essay

Bail granted to 17-year-old in Pune Porsche hit-and-run case within 14 hours. Conditions include educational tasks, supervision, and counseling. Incident killed two.

20 May, 2024 04:30 PM


Trending Judiciary
SC rebukes IMA chief; rejects apology for remarks

SC rebukes IMA chief R V Asokan; rejects his apology for remarks against the court in contempt proceedings involving Baba Ramdev and Patanjali's MD Acharya Balkrishna.

15 May, 2024 11:02 AM
Trending Judiciary
Can't allow parole for having procreation with live-in partner: Delhi HC [Read Order]

Delhi HC denied parole for a convict seeking procreation with a live-in partner, stating it would set a harmful precedent, considering his legal marriage and children.

15 May, 2024 12:19 PM
Trending Judiciary
SC declares arrest of Newsclick's Editor-in-Chief Prabir Purkayastha as invalid

SC declares Newsclick Editor-in-chief Prabir Purkayastha's arrest invalid. He was detained in October 2023 under UAPA for alleged pro-China propaganda. SC orders release.

15 May, 2024 12:30 PM
Trending Judiciary
SC declines to entertain plea for direction to EC to act against PM, BJP leaders

SC rejects plea seeking Election Commission action against PM and BJP leaders for alleged hate speeches during elections.

15 May, 2024 12:55 PM


Join Group

Signup for Our Newsletter

Get Exclusive access to members only content by email