Not mandatory to produce the accused before the Gazetted Magistrate under Section 50 of NDPS Act if he voluntary waives this right: The High Court of Delhi

J 1 IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved via Video Conferencing On : 05.02.2021 Judgment Pronounced via Video Conferencing On : 04.06.2021 BAIL APPLN. 2641 2018 & CRL.M.(BAIL) 555 2021 NABI ALAM @ ABBAS Applicant STATERespondents Mr. Aldanish Rein Advocate. Advocates who appeared in this case: For the Applicant: For the Respondent: Mr. Amit Chaddha APP for the State of NCT Delhi. HON BLE MR. JUSTICE SIDDHARTH MRIDUL HON BLE MR. JUSTICE TALWANT SINGH JUDGMENT SIDDHARTH MRIDUL J The present matter has been received by way of Reference víde Referral Order dated 15.06.2020 passed by learned Single Judge of this Court and marked to this Bench by Hon’ble the Chief Justice by directions dated 18.06.2020 to adjudicate and settle the question of law vis à vis the Provision of Section 50 Narcotic Drugs and Psychotropic Substances Act 1985 which governs the procedure qua the search of a person BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified suspected of being in possession of a narcotic drug or a psychotropic substance inter alia before a Gazetted Officer or Magistrate. The genesis of the present proceeding that calls for determination is that a bail application under Section 439 of the Code of Criminal Procedure 1973 primarily seeking regular bail pending ensuing trial before the Court of learned Additional Sessions Judge Special Judge NDPS) West Tis Hazari Courts Delhi was instituted on behalf of the applicant accused which was dismissed by learned Sessions Court víde order dated 13.07.2018. Thereafter the present bail application under Section 439 Cr.P.C was filed which has been referred to this Bench by the learned Single Judge of this Court by reason of the statedly contradictory views expressed by various Benches of this Court qua the scope and ambit of the stipulations contained in Section 50 of the NDPS Act particularly in relation to the question whether even though the accused at the time of his search has been apprised of his right to be so searched in the presence of a Gazetted Officer or Magistrate ‘if he so requires’ but has expressly waived his right to be so searched before a Gazetted Officer or Magistrate is it still mandated by the said provision that the the accused be searched only before a Gazetted BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified Officer or Magistrate. The substratum of the present case is that upon the reception of a tip off by Sub Inspector Vinod Narcotics Cell Police Station Crime Branch on 27.07.2017 it was brought to his notice that two people namely Nabi Alamand Mohd. Aakil were allegedly indulging in the supply of Heroin in Delhi which the applicant accused and his accomplice obtained from Badaiyu Bareli and that they would be supplying a big consignment of the contraband Heroin between 2.00 p.m. to 2.30 p.m. near traffic light at Chanakya Place Uttam Nagar. It was also intimated to the police officer by the secret informer that if a raid were to be conducted at that time the accused persons could be caught off guard while selling or and purchasing Heroin. Accordingly a raid team was formed and the applicant accused Nabi Alam along with one Mohd. Aakil were apprehended on the spot. Upon a personal search of the applicant accused Nabi Alam a polythene was recovered from the pocket of the trousers worn by him. Inside the said polythene contraband Heroin weighing 250 grams was found and similarly from the possession of Mohd. Aakil 50 grams of Heroin was recovered. The samples of the seized contraband were sent to Forensic Science Laboratory Divisionat Rohini Delhi and the result so BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified obtained confirmed the presence of di acetyl morphine in the samples. On the basis of the aforesaid Nabi Alam and Mohd. Aakil were arrested and booked after registering First Information Report under Sections 21 and 29 of the NDPS Act. At the outset it is observed that the application seeking bail moved before the learned Session s Court came to be dismissed víde order dated 13.07.2018 on the ground of recovery of ‘commercial quantity’ of the contraband the possession of applicant accused Nabi Alam. 6. Mr. Aldanish Rein learned counsel appearing on behalf of the applicant accused Nabi Alam submits that he has been falsely implicated in the present case and has been in judicial custody since his arrest on 27.07.2017. It is the contention of the counsel for the applicant accused that the statutory stipulations as mandated under Section 50 of NDPS Act have not been complied with in the present case and that the prosecution has disregarded the sanctity of the mandatory requirement in force. Learned counsel for the applicant accused Nabi Alam would submit that the provision of Section 50 of the NDPS Act clearly and unequivocally stipulates that the search of a person accused or suspected of being in possession of any narcotic drug or psychotropic BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified substance can only be conducted in the presence of a Gazetted Officer or Magistrate which mandatory stipulation in the instant case has been observed only in its breach. Learned counsel appearing on behalf of the applicant accused Nabi Alam also submits that he was asked to inscribe his signature on blank papers at the time of his search conducted under Section 50 of the NDPS Act by the empowered officers of prosecuting agency negating his statutory right to be searched only before a Gazetted Officer or Magistrate. Learned counsel appearing on behalf of the applicant accused would further submit that it is statutorily mandated that despite a person accused or suspected of being in possession of any narcotic drug or psychotropic substance waiving his right to be searched before a Gazetted Officer or Magistrate after being apprised of his statutory right in that behalf it is still incumbent upon the prosecuting agency and its empowered officers to mandatorily conduct his search before a Gazetted Officer or Magistrate only in order to be compliant with the provisions of Section 50 of the NDPS Act. In order to buttress and bolster his submission Mr. Aldanish Rein learned counsel appearing on behalf of the applicant accused Nabi Alam has placed reliance on series of judgements of this Court BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified hereunder: as well as the Hon ble Supreme Court of India which are elaborated 1. Arif Khan @ Agha Khan vs. State of Uttarakhand reported as AIR 2018 SCC 2123. 2. The State of Uttarakhand Vs. Arif Khan @ Agha Khan in Review Petition No. 270 of 2019 in Criminal Appeal No. 273 2007. 3. State of Punjab vs Baldev Singh reported as AIR 1999 SC 4. Karnail Singh vs State of Haryana reported asSCC 5. Vijaysinh Chandubha Jadeja vs State of Gujarat reported 6. Narcotics Control Bureau Vs Sukhdev Raj Sodhi reported 7. State of Rajasthan Vs Parmanand & Anr reported as AIR 8. Delhi Airtech ServicesLtd. v. State of U.P. reported as as AIR 2011 SC 77. as AIR 2011 SC 1939. 2014 SC 1384. 2011SCC 354. 9. G. K. Dudani v. S. D. Sharma reported as AIR 1986 SC Judgment of Delhi High Court: 10. Innocent Uzoma Vs. State in Crl. A. 139 2017 decided on 11. Lai Babu @ Rajesh @ Raju Vs. GNCTD in Bail Appln. No. 1766 2019 decided on 15 10 19. 12. Vaibhav Gupta vs. State in Bail Appln No. 2014 2019 decided on 20 09 2019. 13. State Vs Vicky in CRL.L.P.143 2017 decided on 13 09 19 14. Sumit Rai @ Subodh Rai vs. State in Crl. A. 578 2017 decided on 29 07 19. 15. Sikodh Mahto Vs. State in Crl. A. 660 2017 decided on BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified 16. Sunny Khanna Vs. State in Bail Appln. No. 218 2019 17. Deepak Shamsher Thapa Vs. State in Crl. A. 831 2014 18. Gurtej Singh Bath Vs. State in Crl. A. 39 2015 decided on 19. Dharambir vs. State in Crl. A. 658 2017 decided on 20. Deepak Singh vs. State in Bail Appln. No. 1854 2017 decided on 25 04 19 decided on 08.01.2019 decided on 31 10 18 Per Contra Mr. Rahul Mehra learned Standing Counsel Criminal) appearing on behalf of respondent State would submit that all statutory prescriptions and requirements have been scrupulously and duly observed in the present case in accordance with law and that the requirement of Section 50 of the NDPS Act for the suspect to be searched only before a Gazetted Officer or Magistrate even though the suspect waives that requisition after categorically being apprised of his right to be so searched is not the stipulation of the provision. It is further submitted that the applicant accused was served with notice to be searched under Section 50 of the NDPS Act whilst simultaneously being informed of his statutory right to be searched before a Gazetted Officer or Magistrate in response to which the applicant accused decided to waive the right by reposing faith in the empowered officer to conduct his search in complete accord with the stipulated and statutory BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified requirements mandated by the provision of Section 50 of the NDPS Act. It is further submitted that applicant accused was caught red handed in possession of ‘commercial quantity’ of contraband substance Heroin weighing 250 grams and committed heinous crime of drug trafficking and warrants no leniency at this stage of trial. 12. Mr. Rahul Mehra learned Standing Counsel appearing on behalf of the respondent State in support of his submissions and contentions placed reliance on the various decisions which are mentioned hereunder: as AIR 2011 SC 77. 2013) 2 SCC 67. SC 2926. as AIR 2018 SC 2123. 2010ACR 7132 SCC 624. 1. State of Punjab vs Baldev Singh reported as AIR 1999 SC 2. Vijaysinh Chandubha Jadeja vs State of Gujarat reported 3. Ashok Kumar Sharma vs State of Rajasthan reported as 4. Raghbir Singh vs State of Harayana reported as AIR 1996 5. Arif Khan @ Agha Khan vs. State of Uttarakhand reported 6. Babua@Tazmul Hossain Vs. State of Orissa reported as 7. Union of India vs Rattan Mallik @ Kabul reported as 8. Siddharam Satlingappa Mhetre v. State of Maharashtra reported as AIR 2011 SC 312. 9. Sundeep Kumar Bafna v. State of Maharashtra reported as AIR 2014 SC 1745. 10. State of Orissa vs Mohd. Illiyas. reported as AIR 2006 SC BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified 11. National Insurance Company ltd. vs Pranay Sethi reported as AIR 2017 SC 5157. 12. Sandhya Educational Society vs Union of India reported as 2015)ALLMR 467. Judgment of Delhi High Court: Innocent Uzoma Vs. State in Crl. A. 139 2017 decided on 2. Anil SharmaVs. State in Bail App. No. 127 2019 decided 3. Shafi @ Lovely Vs. State in Bail App. No. 1493 2019 on 08 11 2019. decided on 19 08 2019. 13. Having heard learned counsel appearing on behalf of the parties and after due consideration of the rival submissions in the context of the facts and circumstances on record as well as the relevant provisions of law and the decisions relied upon by the parties we observe that the solitary question of law that arises for consideration in the present case is: a) Whether even after a person accused or suspected of being in possession of narcotic drug or psychotropic substance is apprised by the empowered officer of his statutory right to be required to be searched before a Gazetted Officer or Magistrate but expressly waives compliance with the said requirement and relinquishes his stipulated right is it still mandatory for the BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified prosecution to conduct his search only before a Gazetted Officer or Magistrate 14. Before we proceed to decide the issue struck it is pertinent to observe that stringent provisions of the NDPS Act cast a heavier duty upon the prosecution who enjoy extensive statutory powers requiring them to follow strictly and comply scrupulously with the safeguards provided in the NDPS Act. There can be no quarrel with the proposition that the intent of the legislature to include Section 50 of the NDPS Act requiring the empowered officer to apprise the person accused or suspected of being in possession of any narcotic drug or psychotropic substance of his statutory right to be searched before a Gazetted Officer or Magistrate was done with a view to impart authenticity transparency and creditworthiness to the proceedings since the Magistrate axiomatically enjoys more confidence of the common man in contrast to any officer of prosecuting agency. 15. It axiomatically follows as conclusively opined by Constitutional Benches of the Hon’ble Supreme Court in Vijaysinh Chandubha Jadeja and Baldev Singh that the right of the person accused or suspected of being in possession of any narcotic drug or psychotropic substance to be informed of his BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified statutory right to be searched before a Gazetted Officer or Magistrate if such person so requires is mandatory. 16. In order to effectively adjudicate the issue before this Court it is considered necessary and profitable to extract the relevant provision of the NDPS Act which reads as follows: Section 50 Conditions under which search of persons shall be conducted 1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41 section 42 or section 43 he shall if such person so requires take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. 2) If such requisition is made the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub section 3) The Gazetted Officer or the Magistrate before whom any such person is brought shall if he sees no reasonable ground for search forthwith discharge the person but otherwise shall direct that search be made. 4) No female shall be searched by anyone excepting a female. 1[(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance or controlled substance or article or document he may instead of taking such person to the nearest Gazetted Officer or Magistrate proceed to search the person as provided under section 100 of the Code of Criminal Procedure 1973After a search is conducted under sub sectionthe BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified officer shall record the reasons for such belief which necessitated such search and within seventy two hours send a copy thereof to his immediate official 17. On a plain reading and harmonious interpretation of the above extracted provision it is evident that Section 50 of the NDPS Act stipulates the conditions under and the manner in which the personal search of a person accused or suspected of being in possession of any narcotic drug or psychotropic substance is required to be conducted. Upon delineation of provision of Section 50 of the NDPS Act it is observed that sub Section provides that when the empowered officer is about to conduct the search of any suspected person he shall “if the person to be searched so requires” take him to the nearest Gazetted officer or the Magistrate for the said purpose. Sub section stipulates that if such request is made by the suspected person the empowered officer who is to effectuate the search may detain the person accused or suspected of being in possession of any narcotic drug or psychotropic substance until the latter can be produced before such Gazetted Officer or the Magistrate. It is evident that if the suspect expresses the desire to be taken to the Magistrate the empowered officer is restrained from effecting the search of the person concerned. Sub section provides that when a person to be BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified searched is brought before such Gazetted Officer or the Magistrate and such Gazetted Officer or the Magistrate finds that there are no reasonable grounds to conduct the search he shall forthwith discharge the person to be searched otherwise he shall direct the search to be made. Sub sections and which were introduced in Section 50 NDPS Act by virtue of the Narcotics Drugs and Psychotropic SubstancesAct 2001 enacted on 27.09.2001 and came into effect from 02.10.2001 provided an option to the empowered officer to search the person accused or suspected of being in possession of any narcotic drug or psychotropic substance notwithstanding the latter exercising his right to be searched only before a Gazetted Officer or Magistrate if the empowered officer has reason to believe that it was not possible to take such person to be searched before the nearest Gazetted Officer or Magistrate without the possibility of the person parting with the possession of any narcotic drugs psychotropic substance or any controlled substance or article or document. In terms of Sub sectionof Section 50 of the NDPS Act the empowered officer mandatorily required to record reasons for his belief that it was necessary to search the person accused or suspected of being in possession of any narcotic drug or psychotropic substance without taking him to the nearest Gazetted Officer or Magistrate BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified within 72 hours of the search being conducted and a copy of the reasons so recorded was mandatorily required to be sent by the empowered officer to his immediate superior. 18. At this juncture we must reiterate that the issue before us in terms of the Referral Order is not about the general applicability of Section 50 of the NDPS Act but is specifically to determine whether even after a person accused or suspected of being in possession of narcotic drug or psychotropic substance is apprised by empowered officer of his statutory right to be required to be searched before a Gazetted Officer or Magistrate but expressly waives compliance with the said requirement and relinquishes his stipulated right it is still mandatory for the prosecution to conduct his search only before a Gazetted Officer or Magistrate. 19. This issue in our considered view is no longer res integra in view of the decision of the Hon’ble Supreme Court in Baldev Singh supra) and Vijaysinh Chandubha Jadeja wherein it was held as follows: “23. In the above background we shall now advert to the controversy at hand. For this purpose it would be necessary to recapitulate the conclusions arrived at in Baldev Singh case6 SCC 172 : 1999 SCC1080] . We are concerned with the following conclusions: the Constitution Bench BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified “(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person it is imperative for him to inform the person concerned of his right under sub section of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However such information may not necessarily be in 2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused. 3) That a search made by an empowered officer on prior information without informing the person of his right that if he so requires he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts failure to conduct his search before a gazetted officer or a Magistrate may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused where the conviction has been recorded only on the basis of the possession of the illicit article recovered from his person during a search conducted in violation of the provisions of Section 50 of the Act. 5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the court on the basis of the evidence led at the trial. Finding on that issue one way or the other would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50 and particularly the safeguards provided therein were duly complied with it would not be permissible to cut short a criminal 6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched we do not BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified express any opinion whether the provisions of Section 50 are mandatory or directory but hold that failure to inform the person concerned of his right as emanating from sub section of Section 50 may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in 7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution in other proceedings against an accused notwithstanding the recovery of that material during an illegal search.” emphasis in original) 24. Although the Constitution Bench in Baldev Singh case6 SCC 172 : 1999 SCC1080] did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub section of Section 50 make it imperative for the empowered officer to “inform” the person concerned suspect) about the existence of his right that if he so requires he shall be searched before a gazetted officer or a Magistrate failure to “inform” the suspect about the existence of his said right would cause prejudice to him and in case he so opts failure to conduct his search before a gazetted officer or a Magistrate may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused where the conviction has been recorded only on the basis of the possession of the illicit article recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified to be searched before a gazetted officer or a Magistrate if so required by him. We respectfully concur with interpretation of the provision would make the valuable right conferred on the suspect illusory and a conclusions. Any 27. It can thus be seen that apart from the fact that in Karnail Singh8 SCC 539 : 3 SCC Cri) 887] the issue was regarding the scope and applicability of Section 42 of the NDPS Act in the matter of conducting search seizure and arrest without warrant or authorisation the said decision does not depart from the dictum laid down in Baldev Singh case6 SCC 172 : 1999 SCC 1080] insofar as the obligation of the empowered officer to inform the suspect of his right enshrined in sub section of Section 50 of the NDPS Act is concerned. It is also plain from the said paragraph that the flexibility in procedural requirements in terms of the two newly inserted sub sections can be resorted to only in emergent and urgent situations contemplated in the provision and not as a matter of course. Additionally sub section of Section 50 of the NDPS Act makes it imperative and obligatory on the authorised officer to send a copy of the reasons recorded by him for his belief in terms of sub section 5) to his immediate superior officer within the stipulated time which exercise would again be subjected to judicial scrutiny during the course of 28. We shall now deal with the two decisions referred to in the referral order wherein “substantial compliance” with the requirement embodied in Section 50 of the NDPS Act has been held to be sufficient. In Prabha Shankar Dubey2 SCC 56 : 2004 SCC 420] a two Judge Bench of this Court culled out the ratio of Baldev Singh case6 SCC 172 : 1999 SCC 1080] on the issue before us as follows: BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified Prabha Shankar Dubey case2 SCC 56 : 2004 SCC420] SCC p. 64 para 11) “11. … What the officer concerned is required to do is to convey about the choice the accused has. The accusedhas to be told in a way that he becomes aware that the choice is his and not of the officer concerned even though there is no specific form. The use of the word ‘right’ at relevant places in the decision of Baldev Singh case6 SCC 172 seems to be to lay effective emphasis that it is not by the grace of the officer the choice has to be given but more by way of a right in the ‘suspect’ at that stage to be given such a choice and the inevitable transgressing it.” However while gauging whether or not the stated requirements of Section 50 had been met on facts of that case finding similarity in the nature of evidence on this aspect between the case at hand and Joseph Fernandez1 SCC 707 : 2000 SCC300] the Court chose to follow the views echoed in the latter case wherein it was held that the searching officer s information to the suspect to the effect that “if you wish you may be searched in the presence of a gazetted officer or a Magistrate” was in substantial compliance with the requirement of Section 50 of the NDPS Act. Nevertheless the Court indicated the reason for use of expression “substantial compliance” words: 2 SCC 56 : 2004 SCC420] SCC p. 64 para “12. The use of compliance’ was made in the background that the searching officer had Section 50 in mind and it was unaided by the interpretation placed on it by the Constitution Bench in Baldev Singh case6 SCC 172 : 1999 SCC1080] A line or a word in a judgment cannot be read in isolation or as if interpreting a statutory BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified provision to impute a different meaning to the It is manifest from the afore extracted paragraph that Joseph Fernandez1 SCC 707 : 2000 SCC 300] does not notice the ratio of Baldev Singh6 SCC 172 : 1999 SCC Dubey2 SCC 56 : 2004 SCC420] Joseph Fernandez1 SCC 707 : 2000 SCC300] is followed ignoring the dictum laid down in Baldev Singh case6 SCC 172 : 1999 SCC1080] in Prabha 29. In view of the foregoing discussion we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act by 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 the 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 insofar as the obligation of the authorised officer under sub sectionof Section 50 of the NDPS Act is concerned it is mandatory and requires 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.” 20. On a plain reading of the above decision it is clear that the obligation of the empowered officer under sub Sectionof Section 50 of the NDPS Act makes it imperative on his part to apprise the BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified person intended to be searched of his right to be searched before a Gazetted Officer or Magistrate failure to comply with which prescription which requires strict compliance would render the recovery of the 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 accused during such search or suspected of being in possession of any narcotic drug or psychotropic substance during the said search. However for the purposes of the issue to be determined in the instant case it is relevant and pertinent to note that the Constitution Bench of the Hon’ble Supreme Court of India in Vijaysinh Chandubha Jadeja supra) clearly observed “Thereafter the suspect may or may not choose to exercise the right provided to him under the said proviso”. The sequitur to this observation of the Supreme Court leaves no manner of doubt that once the suspect has been apprised by the empowered officer of his right to be searched before a Gazetted Officer or a Magistrate but chooses not to exercise that right the empowered officer can conduct the search of such person without producing him before a Gazetted Officer or a Magistrate for the said purpose. 21. Coming now the emphasis placed on behalf of applicant accused on the judgment rendered by the Supreme Court in BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified Arif Khan @ Agha Khan the question that needs to be considered is whether that decision is an authority for the proposition that notwithstanding the person proposed to be searched has after being duly apprised of his right to be searched before a Gazetted Officer or Magistrate but has expressly waived this right in clear and unequivocal terms it is still mandatory that his search be conducted only before a Gazetted Officer or Magistrate. 22. In this behalf it is necessary to consider the observations of the Hon’ble Supreme Court in Arif Khan @ Agha Khan the relevant paragraphs of which decision are being extracted hereinbelow: “18. What is the true scope and object of Section 50 of the NDPS Act what are the duties obligation and the powers conferred on the authorities under Section 50 and whether the compliance of requirements of Section 50 are mandatory or directory remain no more res integra and are now settled by the two decisions of the Constitution Bench of this Court in State Punjab v. Baldev Singh 6 SCC 172 : 1999 and Vijaysinh Chandubha Jadeja1 SCC 609] . of Punjab v. Baldev Singhhas settled the aforementioned questions after taking into considerations all previous case law on the subject. 20. Their Lordships have held in Vijaysinh Chandubha Jadeja that the requirements of Section 50 of the NDPS Act are mandatory and provisions of Section 50 must be strictly complied therefore BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified with. It is held that it is imperative on the part of the police officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorised officer to make the suspect aware of the existence of his right to be searched before a gazetted officer or a Magistrate if so required by him and requires a strict compliance. 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.” 23. A plain reading of the above extracted paragraphs leads to but one inescapable conclusion that their Lordships of the Hon’ble Supreme Court whilst following the ratio of the decision of the Constitution Bench in Vijaysinh Chandubha Jadejaheld that the same has settled the position of law in this behalf to the effect that whilst it is imperative on the part of the empowered officer to apprise the person of his right to be searched only before a Gazetted Officer or Magistrate and this requires a strict compliance the Hon’ble Court simultaneously proceeded to reiterate that in Vijaysinh Chandubha Jadeja “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”. In this view of the matter the reliance placed by counsel BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified his aid. for the applicant accused on the decision of the Supreme Court in Arif Khan @ Agha Khanin our respectful view does not come to 24. Having considered the case law on the subject we are inclined to answer the Reference in the following manner. 25. In view of the discussion in the foregoing paragraphs we answer the issue that arises for consideration in the present Reference in the 26. For the sake of clarity it is held that axiomatically there is no requirement to conduct the search of the person suspected to be in possession of a narcotic drug or a psychotropic substance only in the presence of a Gazetted Officer or Magistrate if the person proposed to be searched after being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistate categorically waives such right by electing to be searched by the empowered officer. The words “if such person so requires” as used in Section 50(1) of the NDPS Act would be rendered otiose if the person proposed to be searched would still be required to be searched only before a Gazetted Officer or Magistrate despite having expressly waived “such requisition” as mentioned in the opening sentence of sub Section of Section 50 of the NDPS BAIL APPLN.2641 2018 Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified Act. In other words the person to be searched is mandatorily required to be taken by the empowered officer for the conduct of the proposed search before a Gazetted Officer or Magistrate only “if he so requires” upon being informed of the existence of his right to be searched before a Gazetted Officer or Magistrate and not if he waives his right to be so searched voluntarily and chooses not to exercise the right provided to him under Section 50 of the NDPS Act. 27. The Bail Application No.2641 2018 and Criminal M. No.555 2021 seeking interim bail be listed before the learned Single Judge for further proceedings in accordance with law on 06.07.2021. 28. Copies of this Judgment be provided to the learned counsel appearing on behalf of the parties electronically and be also uploaded on the website of this Court forthwith. SIDDHARTH MRIDUL TALWANT SINGH JUNE 04 2021 dn danish BAIL APPLN.2641 2018 Click here to check corrigendum if any Digitally signedby:DURGESH NANDANSigning Date:07.06.202115:26:10Signature Not Verified 

Summary: The person to be searched is mandatorily required to be taken by the empowered officer, for the conduct of the proposed search before a Gazetted Officer or Magistrate, only “if he so requires”, upon being informed of the existence of his right to be searched before a Gazetted Officer or Magistrate and not if he waives his right to be so searched voluntarily, and chooses not to exercise the right provided to him under Section 50 of the NDPS Act. The aforesaid was the landmark judgment given by the Delhi High Court in the case of Nabi Alam v. State (Govt. Of NCT Of Delhi) [BAIL APPLN. 2641/2018 &amp; CRL.M.(BAIL) 555/2021] by a two judge bench comprising Justice Siddharth Mridul and Justice Talwant Singh on 4th June 2021. The facts of the case are as follows. Upon the reception of a tip-off by Sub-Inspector Vinod, Narcotics Cell, and Police Station-Crime Branch on 27.07.2017, it was brought to his notice that two people namely Nabi Alam (the present applicant/accused) and Mohd. Aakil were allegedly indulging in the supply of Heroin in Delhi, which the applicant/accused and his accomplice obtained from Badaiyu/Bareli and that they would be supplying a big consignment of the contraband Heroin between 2.00 p.m. to 2.30 p.m. near traffic light at Chanakya Place, Uttam Nagar. On sending a raid team and investigating the accussed, contraband Heroin weighing 250 grams was found; and similarly, from the possession of Mohd. Aakil 50 grams of Heroin was recovered and on testing, it was found to have confirmed presence of di-acetyl-morphine. This lead to the arrest of both the accused under Section 21 and 29 of the NDPS Act. The arguments put forth by the learned counsel appearing on behalf of the applicant/accused state that he has been he has been falsely implicated in the present case and the statutory stipulations as mandated under Section 50 of NDPS Act have not been complied with in the present case and that the prosecution has disregarded the sanctity of the mandatory requirement in force. Counsel appearing on behalf of the applicant/accused Nabi Alam also submitted that he was asked to inscribe his signature on blank papers at the time of his search conducted under Section 50 of the NDPS Act by the empowered officers of prosecuting agency, negating his statutory right to be searched only before a Gazetted Officer or Magistrate. On the other hand, the counsel for respondent submitted that all statutory prescriptions have been duly compiled with and relied on certain landmark judgments to support his case. The primary question that lied before the court was that “Whether even after a person accused or suspected of being in possession of narcotic drug or psychotropic substance is apprised by the empowered officer of his statutory right to be required to be searched before a Gazetted Officer or Magistrate, but expressly waives compliance with the said requirement and relinquishes his stipulated right, is it still mandatory for the prosecution to conduct his search only before a Gazetted Officer or Magistrate?”