Sect 50 NDPS | Gazetted Officer in Raiding Party is No Substitute for Independent Authority: Bombay High Court Acquits Kenyan National

“Absence of Option to Be Searched Before Magistrate, and Offering Raiding Officer as Gazetted Officer, Violates Section 50 NDPS Act in Letter and Spirit”, Bombay High Court at Goa set aside the conviction of a Kenyan national, Joseph Achola Ouma, under the Narcotic Drugs and Psychotropic Substances Act, 1985, holding that the mandatory safeguards of Section 50 of the Act had been grossly violated during his personal search.

Justice Shreeram V. Shirsat holding that the conviction and sentence imposed by the Additional Sessions Court, South Goa at Margao, were unsustainable in law, as the search and subsequent recovery of contraband were rendered illegal due to non-compliance with Section 50 of the NDPS Act.

The trial court had convicted the appellant for possession of cocaine (3.10 gms) and LSD (7.53 gms), sentencing him to 10 years’ rigorous imprisonment under Section 22(c) and 5 years under Section 21(b). However, the High Court found the entire conviction vitiated by a fundamental flaw in procedure: the accused was not informed of his right to be searched before a Magistrate, and was instead offered a search before a Gazetted Officer who was himself part of the raiding team.

“Only Two Options Exist: Search Before a Magistrate or Independent Gazetted Officer — No Third Option Permissible”

The core issue addressed by the Court was whether the appellant had been properly apprised of his rights under Section 50(1) of the NDPS Act. The provision mandates that before any personal search is conducted, the accused must be informed of his right to be searched before the nearest Magistrate or a Gazetted Officer.

The prosecution's own witnesses—including the panch (PW 1) and three police officers (PW 2, PW 6, and PW 9)—uniformly admitted that only one option was given: that the accused could be searched before a Gazetted Officer, namely Dy. SP Uttam Raut Dessai, who was present at the spot and part of the raiding team.

“The accused must be given a clear and flawless option that he has a right to be searched before a nearest Gazetted Officer or a Magistrate, any third option will be contravening and compromising the validity and sanctity of the provision.” [Para 36]

The Court held that merely stating that a Gazetted Officer is present does not amount to compliance, especially when the officer is part of the team executing the raid. Such a presentation pollutes the decision-making process of the accused, rendering the search tainted and any recovery inadmissible.

Court Finds Recovery “Legally Inadmissible” – Conviction Based Solely on Personal Search Held Illegal

Justice Shirsat categorically ruled that since the entire case was built on the recovery from the personal search, which itself stood vitiated by the illegality under Section 50, the conviction could not stand.

“Failure to comply with Section 50 renders the recovery of the illicit article suspect and vitiates the conviction if it is recorded solely on the basis of such recovery.” [Para 33, citing Vijaysinh Chandubha Jadeja]

Further, the High Court noted that the trial court had grossly misinterpreted the law, erroneously treating the mere presence of a Gazetted Officer at the scene as compliance with Section 50. This, the Court held, went against the settled position of law, including binding precedents of the Supreme Court.

“The trial court has completely misdirected itself… Such an interpretation does not stand to the scrutiny of Section 50 of the Act.” [Para 38]

Strict and Literal Compliance with Section 50 is Non-Negotiable: No Room for “Substantial Compliance”

In a comprehensive analysis, the Court relied heavily on Vijaysinh Chandubha Jadeja v. State of Gujarat [(2011) 1 SCC 609], where the Supreme Court had overruled the “substantial compliance” doctrine and held that strict adherence to Section 50 is mandatory.

Citing further decisions from High Courts and the Supreme Court, the Bench reiterated:

“While informing the right, only two options of either being searched in presence of a Gazetted Officer or Magistrate must be given, who also must be independent and in no way connected to the raiding party.” [Para 36]

“The suspect is entitled to be searched in the presence of a Gazetted Officer or a Magistrate. The failure to give this choice is fatal.” [Para 35]

This was not a mere technical lapse, but a fundamental denial of a statutory and constitutional safeguard, the Court ruled.

Clear Judicial Warning: “Serious Note” of Raiding Officers' Lack of Legal Awareness

Not stopping at acquittal, the Court took serious note of the pattern of procedural violations:

“It appears that the officers conducting such searches were themselves not aware of the requirements of law and what was expected of them to communicate to the suspect.” [Para 37]

The Court’s judgment serves as a judicial caution that officers entrusted with NDPS enforcement must be trained and vigilant in adhering to constitutional and statutory safeguards, especially given the harsh penalties under the NDPS Act.

Conviction Quashed, Appellant Acquitted and Ordered Released

Holding that “non-compliance of mandatory provisions of Section 50 is fatal to the prosecution”, the High Court concluded that the recovery itself was inadmissible, and no presumption under Section 54 of the NDPS Act could be drawn against the accused.

Accordingly, the Court quashed and set aside the judgment dated 16.11.2024 and ordered the immediate release of the appellant unless required in any other case.

The appellant was directed to execute a personal bond of ₹50,000 under Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 437A CrPC), to ensure appearance in the event of an appeal against the acquittal.

Date of Decision: 19 January 2026