'Substantial' S. 50 NDPS Act Compliance Can't Be Determined At Bail, But During Trial- Allahabad High Court

The Allahabad High Court has noted that at the stage of bail, it is only to be seen whether provisions of Section 50 of the NDPS Act have been prima facie complied with or not; it is impossible to determine with any degree of accuracy whether compliance with Section 50 of the NDPS Act had been substantially made or not; this can only be determined during the trial.

When dealing with the claim of an NDPS Accused requesting bail on the grounds that at the time of the search and recovery, the mandatory provisions of Section 50 of the NDPS Act were not complied with, the bench of Justice Sameer Jain made this observation.

The recovery memo claims that the accused had the option of being searched before a Gazetted Officer or a Magistrate; however, according to the accused's attorney, she was never offered this choice. The accused was allegedly found in possession of 240 gms of Alprazolam powder.

Further, it was argued that the searching officer must present the applicant before a magistrate or gazetted officer in light of the Supreme Court's decision in Arif Khan @ Agha Khan Vs. State of Uttarakhand, 2018 AIR (SC) 2123. Since this was not done, the entire recovery is invalid, allowing the accused to request bail.

The A.G.A. countered that the accused was actually given the choice of being searched in front of a Magistrate or a Gazetted Officer prior to the search, but that, in accordance with the recovery memo, she chose instead to state that she may be searched by the Searching Officer. Two female police constables then conducted the search

In light of the non-obstante provision of Section 37 of the NDPS Act, the state contended that the applicant should not be released on bail because the conditions of Section 50 of the NDPS Act were properly followed in both form and spirit.

According to Section 50 of the NDPS Act, the Searching Officer must first take the Accused before such an Officer, but if, after giving the Accused the Option, he does not Opt to Be Searched Either Before a Magistrate or A Gazetted Officer, then the Officer can make a search without taking the Accused either before a Magistrate or A Gazetted Officer.

In this regard, the Court also cited the Supreme Court's decisions in the cases of Vijaysinh Chandubha Jadeja v. State of Gujarat (2011) 1 SCC 609 and State of Punjab v. Baldev Singh (1999) 6 SCC 172. The Court further observed as follows: "...if in spite of appraising the right of accused he/she did not choose either to be searched before a Magistrate or a Gazetted Officer then search may be taken by

In a significant move, the Court also cited the Delhi High Court's decision in the case of Nabi Alam alias Abbas v. State (Govt Of Nct Of Delhi), which held that if a suspect under the NDPS Act is informed of his right to be searched before a Gazetted Officer/Magistrate but chooses not to exercise that right, the empowered officer may still conduct the search of that suspect without bringing him before a Gazetted Officer/Magist

The empowered officer informed the applicant that she had the option to be searched before a magistrate or a gazetted officer, but she (applicant) chose not to do so, and with her consent, her search was conducted by two female police constables. As a result, the court determined that the empowered officer complied with the requirements of Section 50 of the NDPS Act, citing the Vijaysinh Chandubha Jadeja case (supra).

The Court also explained that at the bail stage, all that is required to determine is whether or not the prima facie requirements of Section 50 of the NDPS Act have been met. This resulted in the bail plea being denied.

With regards to Section 50 of the NDPS Act

It should be noted that Section 50(1) of the NDPS Act mandates that any officer duly authorised under Section 42 who is about to conduct a search of a person in accordance with Sections 41, 42, or 43 shall, if that person requests it, immediately take that person to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

According to Section 50 of the NDPS Act, the investigating officer has a responsibility to inform the accused of his legal right to request that the search for drug possession be conducted in front of a magistrate or a gazetted officer; however, if the accused waives this legal right or gives his consent (whether oral or written), the investigating officer may proceed with the search.

Neelam Devi vs.State of U.P.