This article has been authored by the winner of 1st IRALR Article Writing Competition - Eeshan Sonak, a second-year student at NALSAR, Hyderabad.
“Religion is opium of the people, but today opium is the religion of the people, and like God, is omnipresent, omnipotent and omniscient.”
– Justice Krishna Iyer
The Narcotic Drugs and Psychotropic Substances Act, 1985 was enacted by the Parliament with the view of creating comprehensive legislation with stringent regulations and enhanced penalties that would tighten control over drug abuse in India. Before its implementation, the principal Central Acts governing the subject of drug abuse were the Opium Act, 1857, the Opium Act, 1878, and the Dangerous Drugs Act, 1930. These were now outdated and, with the passage of time, revealed many deficiencies in combatting the growing menace of illicit drug trafficking and drug abuse. It was now understood that drug abuse could no longer be considered a ‘victimless’ crime, but that it imposed a staggering burden on the people and the nations of the world. It was a burden that society could ill afford to carry. It was in this background that the NDPS Act was enacted.
The NDPS Act, 1985 ( hereinafter referred as ‘the Act’) confers upon police officers the power to search a person suspected of being in possession of drugs. However, it also provides for certain safeguards against its use. One such safeguard is Section 50, which prescribes the conditions under which the search of a person is required to be conducted. Sub-section (1) provides that when an empowered officer is about to search a suspected person, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer or Magistrate for the purpose. While the CrPC places no such condition on the police, due to the severity of the crime and its stringent punishment, the legislature felt the need to provide suspects with this additional safeguard in drug-related matters.
This paper revolves around the interpretation of the phrase “if such person so requires” as used in Section 50(1) of the Act, and argues that the decision of the Division Bench of the Supreme Court in Arif Khan v. State of Uttarakhandruns contrary to the decisions of the Constitution Benches in State of Punjab v. Baldev Singh and Vijaysinh Chandubha Jadeja v. State of Gujarat.
Conceptual breakdown of Section 50 of the NDPS Act
Section 50 of the Act has always been summum bonum of every defence counsel in prosecutions emanating from the Act. On numerous occasions, this Section has drawn a thin line of difference between conviction and acquittal. Apart from the issue of whether a suspect must compulsorily be searched before a Magistrate, this Section raises substantial questions as to its applicability, procedural manner, and its effect. To facilitate a holistic understanding of the issue at hand, some such questions have been discussed in this part of the paper.
At the outset, it is pertinent to note that Section 50 shall only be attracted in case of personal search of a person, and not the search of premises, vehicles, or articles. However, in case of a composite search where the police search the bag as well as the person himself, Section 50 will apply. Another issue that often arises in the context of Section 50 is regarding the form of communication. The Supreme Court in State of Rajasthan v. Parmanand ruled that a joint communication of the right under Section 50 would not be sufficient. There is a need for individual communication to each accused and independent consent by each accused. It has also been argued that the wordings Gazetted officer ‘or’Magistrate give the suspect a choice. However, such an argument has been squarely rejected by the Supreme Court, saying that it must be the nearest of the two, and the officer shall make such determination.
Lastly, we must understand the exclusionary rule relating to the effects of an unlawful search. This rule itself has been the subject of numerous scholarship, and for want of brevity, shall not be extensively explored in this paper. However, an understanding of the consequences of a search being declared unlawful is essential when dealing with the issue at hand. In this regard, a Constitution Bench of the Supreme Court in Poonam Mal v. Director of Inspection held that evidence must not be excluded merely because it was obtained from an illegal search. Relying on this decision, several judgements of the Supreme Court held that evidence collected during investigation in violation of Section 50 of the Act does not become inadmissible, and the trial on the basis thereof does not get vitiated. However, several other judgements of the Supreme Court diverged from this view and held that failure to observe the safeguards while conducting search and seizure as provided by Section 50 would render the conviction and sentence of an accused illegal. This divergence of opinion was finally put to rest by the Constitution Bench in Baldev Singh, which unambiguously held that evidence collected in violation of statutory provisions could not be admitted. The Court added that while failure to comply with Section 50 would not vitiate the trial, it would render the recovery of illicit article illegal and vitiate the conviction and sentence if recorded only based on possession of such illicit article.
Suspect must Mandatorily be made Aware of his Right: A Journey
“The Latin maxim Salus populi suprema lex (the safety of the people is the supreme law) and salus republicae suprema lex (safety of the State is the Supreme law) co-exist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be ‘right, just and fair’.”
– Chief Justice Earl Warren in Miranda v. Arizona
In the 21st Century, illicit drug trafficking and drug abuse pose a severe threat to society, especially to the younger generation. The Act tightened the regulation of such offences with enhanced sentences and stricter implementation. However, with this enhancement in the severity of punishment, it becomes all the more important to ensure that an innocent person is not falsely implicated. Section 50 of the Act was a step in this direction. It adds legitimacy, transparency, and accountability to the investigation process. It upholds the ideal of a ‘right, just, and fair’ trial.
This part of the paper studies the evolution of Section 50 through various decisions of the Supreme Court prior to Arif Khan. These decisions shall lay down the foundations on the basis of which the correctness of Arif Khan shall be tested.
The first authoritative judgement of the Supreme Court holding that it is obligatory for an officer to inform a suspect of his right to be searched before a Gazetted Officer or a Magistrate is State of Punjab v. Balbir Singh. In this case, the Division Bench reasoned that to afford an opportunity to the person to be searched before a Magistrate or Gazetted Officer, he must be made aware of the existence of such a right. The Court ruled that failure to inform the person to be searched “would amount to non-compliance of Section 50, which is mandatory, and thus it would affect the prosecution case and vitiate the trial.” It added, “After being so informed whether such person opted for such a course or not would be a question of fact”.
The ratio in Balbir Singh has been subsequently upheld and applied in numerous cases. None of the decisions of the Supreme Court after Balbir Singh have departed from that opinion, thus showing unanimity of judicial pronouncements to the effect that it is an obligation of the empowered officer and his duty before conducting the search to inform the suspect that he has a right to require his search being conducted in the presence of a Gazetted Officer or Magistrate.
Taking into account these judgements, the 155th Law Commission Report proposed that Section 50(1) be amended to insert the words “inform such person that he has a right to be searched in the presence of a gazetted officer or the magistrate”.
These decisions were examined and upheld by a Constitution Bench of the Supreme Court in Baldev Singh. The Court concluded that it was imperative to inform the suspect of his right under Sub-section (1), and failure to do so would render the trial unfair. Thus, it solidified the principle that compliance with Section 50 was mandatory and not just directive.
Though Baldev Singh held that information need not be conveyed in any prescribed form or in writing, the manner or form of communication was still left ambiguous. In Joseph Fernandez v. State of Goa, where the suspect was informed that “if you wish you may be searched in the presence of a gazetted officer or a Magistrate”, the Court was satisfied of substantial compliance with the requirement of Section 50. In Krishna Kanwar v. State of Rajasthan,the Court observed that there was no specific form prescribed for conveying the information required to be given under Section 50. Hence, the Court concluded that it was the substance and not the form of intimation that needed to be looked at on a case to case basis. There could not be any sweeping generalization or straitjacket formula. In Prabha Shankar Dubey v. State of Madhya Pradesh, the Court opined that no specific words were required to be used to convey the existence of the right. The Court held that even giving the suspect a choice or an option of being searched before a Gazetted Officer or Magistrate was substantial compliance with Section 50. These decisions were called into question before the Constitution Bench in Jadeja.
The Court in Jadeja reiterated that the purpose of Section 50 was to check the misuse of power, to avoid harm to innocent persons, and to minimize the allegations of planting or foisting of false cases by the law enforcement agencies. Keeping this in mind, the Court opined that the concept of substantial compliance “in Joseph Fernandez and PrabhuShankar Dubey is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh case”. Instead, it held that Section 50 is mandatory and requires ‘strict compliance’. It added that “thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision”.
The ambit of Section 50 was further expanded in Ashok Kumar Sharma v. State of Rajasthan, where it was clearly and unambiguously held that merely informing the suspect that he could be searched before a Magistrate or Gazetted Officer if he so wished was not compliance of Section 50. The suspect must be made aware that he has such right. The Court added that “only if the suspect does not choose to exercise the right in spite of apprising him of his right, the empowered officer could conduct the search on the body of the person.”
Having studied the position of law which existed before Arif Khan, the next part of this paper shall test whether the ruling of the Division Bench therein is in consonance with the principles and interpretation embodied in Baldev Singhand Jadeja.
Arif Khan - A Problematic Precedent?
In Arif Khan v. State of Uttarakhand, the Supreme Court was examining the conviction of the appellant by the Uttaranchal High Court, which in turn had confirmed the Additional Sessions Judge’s conviction dated 9-11-2004. In this case, the accused admitted to being in possession of ‘charas’ and was informed of his legal right to be searched in the presence of a Gazetted Officer or Magistrate to which the accused replied that he had faith in the raiding police party and consented to be searched by them. The raiding police party accordingly obtained his consent in writing and proceeded to search him, which resulted in the seizure of 2.5kg of charas from his person. In these facts, the Division Bench of the Supreme Court reversed the conviction by the two Courts and acquitted the accused on the grounds of non-compliance with Section 50 of the Act.
To arrive at this conclusion, the Court relied on the cases of Baldev Singh and Jadeja and specifically noted as follows,
“It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act, but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a gazetted officer or a Magistrate”.
After such noting, the Court proceeded to hold that the mandatory requirements of Section 50 are not satisfied because “the search and recovery of the contraband ‘charas’ were not made from the appellant in the presence of any Magistrate or gazetted officer”. In effect, the Court held that the prosecution must mandatorily prove that the search was conducted in the presence of a Magistrate or Gazetted Officer.
In my opinion, such an interpretation is neither in consonance with the dictum laid down in Baldev Singh and Jadeja, nor is it borne out from the language of Section 50(1). Jadeja unambiguously held that the suspect may or may not choose to exercise the right under Section 50. The ruling in Arif Khan implies that irrespective of the choice of the suspect, he must be taken before a Magistrate or Gazetted Officer. Sub-section (1) of Section 50 explicitly uses the words “if such person so requires”, which ordinarily points to the possibility of the suspect not requiring his search to be conducted in the presence of a Magistrate or Gazetted Officer.
This means that after informing the suspect of his right to be searched in the presence of a Magistrate or Gazetted Officer, if he chooses not to exercise such right, the police officer would still need to produce the suspect before such officer. This begs the question that if a suspect must mandatorily be searched in the presence of a Magistrate or Gazetted Officer, what difference would informing the person of such right make? In practical terms, the exercise of informing the person of the existence of such a right would be a futile formality. Such interpretation would mean that a suspect cannot, under any circumstances whatsoever, waive his right to be searched in the presence of the named officers. Besides, no reasons can be found in the decision to support the rather abrupt conclusion that search before a Gazetted Officer or Magistrate is a must, irrespective of whether the suspect requires the same.
In my opinion, the conclusion in Arif Khan reflects neither the text of Section 50 nor the intent of the Parliament in framing the same. On the contrary, Arif Khan diverges from Baldev Singh and Jadeja, thereby reducing apprising the suspect of his right, to an empty formality. Interestingly, a review petition filed against Arif Khan was also dismissed.
This ruling has resulted in numerous acquittals of suspects who were not searched before a Gazetted Officer or Magistrate, despite their not opting to be so searched. This is evident from the study of cases before the Delhi High Court which have been examined in the next part of this paper.
Delhi High Court’s tryst with Arif Khan: A Case Study
The ruling in Arif Khan was followed by the Delhi High Court in several cases resulting in a spate of acquittals. In Sikodh Mahto v. State, the Single Judge of the Delhi High Court noted that Arif Khan marks a “radical change” in the jurisprudence relating to Section 50 of the Act. The Court reasoned that though the Jadeja seemed to suggest that informing the suspect of his right to be searched before a Gazetted Officer or Magistrate constituted compliance with the mandate of Section 50, Arif Khan, after noticing Jadeja, nevertheless holds that, even where the accused declined the offer under Section 50, the raiding team was, still required to have his search conducted in the presence of a Gazetted Officer or Magistrate. The Court concluded that the said enunciation was a binding precedent by virtue of Article 141 of the Constitution of India. Such a conclusion was reached in subsequent cases as well, resulting in acquittals.
However, this tide was halted to some extent by another Single Judge of the Delhi High Court in Innocent Uzoma v. State. In this case, the single judge relied on Jadeja to interpret the words “if such person so requires” to mean “only if he so requires” and opined that if Section 50(1) is read to mean that it is necessary in all cases that a search is conducted before a Magistrate or a Gazetted officer, there would be no purpose in informing the suspect of his right to be searched before such officers. On the basis of such interpretation, the Court dismissed the appeal and upheld the conviction.
These divergent views were noticed by yet another Single Judge of the Delhi High Court in Nabi Alam v. State, and the issue has been referred to a larger bench for resolution, where it presently pends.
In conclusion, this paper argues that Arif Khan misinterprets Section 50 of the NDPS Act, and misconstrues the Constitution Bench judgements in Jadeja and Baldev Singh. While these judgements expressly hold that the suspect may choose whether or not to exercise his right to be searched before a Magistrate or Gazetted Officer, Arif Khanrenders meaningless such choice. As was correctly observed in Innocent Uzoma, there would be no purpose in informing the suspect of his right to be searched before such officers, if he is mandatorily required to be searched before them. Arif Khan must therefore be treated as an aberration, and not the rule. Only time can tell whether Arif Khan will prevail as the correct exposition of the right of a suspect under Section 50. Hopefully, the decision will be reconsidered on an appropriate future occasion.
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