Proper Mode of Compliance of Sec 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 Amaresh Patel LANDMARK JUDGMENT Fri, May 28, 2021, at ,10:11 AM Title of the Case – Proper Mode of Compliance of Sec 50 of Narcotic Drugs and Psychotropic Substances Act, 1985Name of the case – Yogesh Kumar vs. The State of Bihar., Crl.A. (SJ) NO. 2183 of 2018 (Patna High Court)Date of Judgment – 17th August, 2019Judges: Justice Aditya Kumar TrivediSubject and sections involved – Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985Issue: Whether an accused intends to be searched by police officials or before Magistrate, Gazetted Officials is not the proper mode of compliance of Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985. Fact of the Case: It was informed to the chain of authority that Yogesh Kumar, the attendant of Coach is carrying one bag in bedroll box wherein ganja is suspected. He confessed before Magistrate that he is carrying Ganja in the bag and so, he is ready to be searched by the police officials. During the course, the bag was having over his back, Ganja was found. In the cross-examination it was submitted that nothing has been recovered from the possession of the appellant.Ratio of the case - The Patna High Court while allowing the appeal relied upon Vijaysingh Chandubha Jadeja vs State of Gujarat, (2011) 1 SCC 609 wherein the constitutional bench held after considering earlier constitutional bench judgment in State of Punjab v. Baldev Singh, (1999) 6 SCC 172, wherein it was observed as follows;“the object with which the right under section 50 (1) of the NDPS Act, by the way of a safeguard, has been conferred on the suspect, viz, to check the misuse of power, to avoid harm to innocent persons and to minimise all allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under section 50 (1) of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.” Thus, it was held that the concept of “substantial compliance” with the requirement of section 50 of the NDPS Act introduced and read into the mandate of the said section in Joseph Fernandez (2000) 1 SCC 707 and Prabha Shankar Dubey (2004) 2 SCC 56, is neither borne out from the language of section 50 (1) nor it is in consonance with the dictum laid down in Baldev Singh’s case (1999) 6 SCC 172. The bench said, “We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of (1974) 2 SCC 33 the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well."