Oral Waiver Of Right To Be Searched Under Section 50 NDPS Act Must Be Reduced To Writing: Bombay High Court Grants Bail

"Even if the suspect says that he would not like to be searched before a Gazetted Officer or Magistrate and he would be fine if his search is undertaken by the empowered officer, the matter should not rest with just an oral statement of the suspect. The suspect should be asked to give it in writing duly signed by him." Bombay High Court, in a significant ruling, held that any waiver of the right to be searched before a Magistrate or a Gazetted Officer under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) must be reduced to writing.

 Justice Shyam C. Chandak observed that a mere oral statement by an accused declining the presence of a superior officer during a personal search is insufficient to satisfy the mandatory procedural requirements of the Act.

The Applicant, Shakir Jamil Ahmed Shaikh, was apprehended by the RAK Marg Police on February 26, 2023, near Darbar Hotel, Mumbai. Following a personal search conducted in the presence of panchas, the police allegedly recovered 100 grams of Mephedrone (MD) from his possession. Consequently, he was arrested and charged under Sections 8(c), 22(b), and 22(c) of the NDPS Act. The trial court had previously rejected his bail application, leading to the present proceedings before the High Court.

The primary question before the Court was whether a suspect’s oral waiver of their right under Section 50 of the NDPS Act—to be searched in the presence of a Magistrate or Gazetted Officer—is legally valid if it is not recorded in writing and signed. The Court also examined whether non-compliance with this procedural mandate entitles the accused to bail despite the recovery of a commercial quantity of drugs.

The Court noted that while the prosecution claimed the Applicant was served with a written notice under Section 50, the subsequent "waiver" was problematic. According to the Panchnama, the Applicant orally replied that a search before a Magistrate or Gazetted Officer was "not necessary." However, the Court highlighted that this waiver was neither recorded in the copy of the notice nor separately signed by the Applicant.

Oral Statements Regarding Waiver Not Sufficient

The Bench emphasized that the protection offered by Section 50 is not a mere technicality but a fundamental safeguard against the planting of evidence. The Court observed that allowing oral waivers would dilute the legislative intent of the NDPS Act, which provides for stringent punishments and therefore requires strict procedural compliance during the search and seizure process.

Supreme Court Precedent On Section 50 Compliance

Relying on the Supreme Court’s decision in Rajan Kumar Chadha v. State of Himachal Pradesh (2023), Justice Chandak noted that the Apex Court has put an end to the debate regarding the suspect being apprised of their rights. The High Court reiterated that even when a suspect elects to be searched by the empowered officer, such a choice must be documented to lend "credence to the compliance of Section 50."

"The suspect should be asked to give it in writing duly signed by him in presence of the empowered officer as well as the other officials of the squad that 'I was apprised of my right to be searched before a Gazetted Officer or Magistrate... however, I declare on my own free will and volition that I would not like to exercise my right'."

Impact Of Non-Compliance On Bail Plea

The Court found that the failure to properly record the waiver supported the Applicant’s contention that he was not searched as required by law. Although the prosecution argued that the recovery involved a commercial quantity—triggering the rigors of Section 37 of the NDPS Act—the Court found the procedural lapse regarding the search to be a vital factor in favor of the Applicant, who had already spent three and a half years in custody.

Criminal Antecedents Not An Absolute Bar To Bail

Addressing the State's concern regarding the Applicant's two criminal antecedents involving Mephedrone, the Court noted that the Applicant was already on bail in those earlier cases. The Bench held that the lack of progress in the current trial, where no witnesses had been examined despite charges being framed, further necessitated his release on bail.

The High Court concluded that the non-compliance with the mandatory procedure under Section 50 of the NDPS Act, as clarified by the Supreme Court, entitled the Applicant to bail. The Court directed his release on a P.R. Bond of Rs. 50,000/- with sureties, while clarifying that these observations are confined to the determination of bail and should not influence the final trial.

Date of Decision: 08 July 2026