The Question of Substantial Compliance of Section 50, Narcotics Drugs and Psychotropic Substances act, 1985

Abstract

The seizures of Narcotics have seen a steady rise recently, and each case is governed by its own complexities. The most important provision regarding extension of protection to the accused against a false narrative which might be created by the Police for framing a person under the NDPS Act, 1985, is perhaps Section 50; it is also safe to assume that this provision is the only safeguard provided to the accused before search and seizure in case of personal search of the accused.

In June 2020, the Delhi High Court referred a question of waiving off of legal right under Section 50 by the accused person who is to be searched to a division bench.

The complex subject of substantial compliance of Section 50 has been incredibly controversial, which it still remains, as it is seen that the Police still take the provision very lightly, a provision carrying mandatory compliance to the letter under Narcotics Drugs and Psychotropic Substances Act, 1985.

Since 1994, i.e., after the judgement of the Balbir Singh case, the Supreme Court, until the Jadeja Case in 2011, gave certain judgements which caused fallacies in the interpretation of Section 50, leading to wrongful convictions.

In this paper, we try to understand the issue by looking at how, tearing through the complex arguments, the Supreme Court has interpreted this law clear as day.

To untangle the complex issue of substantial compliance on Section 50, we must dwell into the dictum laid down eventually, following this perilous journey through many judgements of the Supreme Court of India as follows:

State of Punjab Vs. Balbir Singh²:

The Balbir Singh Judgement was a landmark judgement where the Learned Counsel for the defendant quoted the Miranda Rights case of the United States of America, and Lewis Mayers, as according to the Learned Counsel for the defendant, the requirements stipulated by reading Section 50 are evidently absolutely mandatory and must be complied with strictly by the police officers.

In the Petition presented to the Apex Court, the Learned Counsel for the defendant quotes:

• Lewis Mayers’s work titled Shall We Amend the 5th Amendment³;
• Miranda v. Arizona⁴

The Learned Counsel further contended that the importance and value given to the safeguards under Section 50, NDPS Act, 1985 have to be absolute because, in the present context, importance has been given to the rights of an accused in custody as well. So, the officer is duty-bound for the conveyance of this information:

“Legal right to be searched in front of or in attendance of a Gazetted Officer or a Magistrate.”

The Apex Court observed that when prior information is there regarding an offence under the NDPS Act, 1985, then the Authorised Officer/Empowered Officer who is acting under Sections 41(2) or 42 must:

• Comply Mandatorily with Section 50, NDPS Act, 1985.
• The communication of clear information must be made prior to the search of the person that if the suspected person requires then he/she, for personal search, be produced in strict conformity with provisions of Section 50.
• It is an obligation to convey this information to the accused/suspected person who is about to be personally searched or examined.
• It will definitely be nonconformity to Section 50 if there is failure to inform, and if there is failure to comply strictly with the provision, then it will adversely affect the case of the prosecution and would vitiate the trial.
• When the person is informed, and then he/she decides to use or not use the right would become a question of fact⁵.

Joseph Fernandez Vs. State of Goa⁶:

In the present case, the main question arose regarding substantial compliance of Section 52 & 57 and its limits. Factual circumstances in the present case were such that the officer who was detecting/discovering in a hotel had told the suspect of their identity and pointed out that the officer suspects that the said person is in possession of illegal Drugs/Contraband, the officer let the suspect know that if it is his desire, then his search can be done in conformity to Section 50, i.e. either in front of a Gazetted Officer or a Magistrate, after this Drugs/Contraband was recovered on the suspect after his personal search, those Drugs/Contraband were seized under a Panchnama⁷, after which the suspect was apprehended and arrested.

Here we see that the court was of the opinion that the person was made known about the facts and circumstances for which he was being apprehended or arrested, which was the recovery of drugs/contraband from his possession, even though nothing is formally in writing or on record about any information given to the suspect which elaborates the grounds for his arrest.

The court deduced in the above situation that the suspect was incidentally informed about him being arrested for the possession of illegal Drugs/contraband, as there is material on record in the form of:

• Panch Witnesses;
• Investigating Officer’s (IO) Evidence;
• Panchanama Contents.

The above-mentioned evidence indicates that the suspect was told about him being suspected of possessing drugs/contraband; moreover, under panchanama, drugs/contraband were retrieved from him, and so, the suspect has been indirectly made aware of the fact of his arrest for possessing illegal drugs/contraband.

This is why the court, in a subtle manner, upheld and observed that there is “substantial compliance” with regards to Section 50 and 52 and that it is perfectly acceptable.

Prabha Shankar Dubey Vs. State of Madhya Pradesh⁸:

In the present case, the circumstances were such that the Police Witness (PW), who was the officer conducting the search, told the appellant that “if the appellant wanted then the appellant can be searched in the presence of a Magistrate of in the presence of a Gazetted Officer”, the Counsel for the appellant here however contended that the requirements mandated under Section 50 have not been complied with in the exact manner as prescribed under the law by the Police Witness (PW). The Police Witness (PW) contends that the appellant did not “reciprocate favourably” to this statement.

Now the court is of the view that whatever the Police Witness (PW) presented/said to the appellant about his “right to be searched” is communication for the fulfilment of the requirements of Section 50 because at that moment, the police officer (Investigating Officer) can only have the requirements of Section 50 in mind, and that police officer specifically stated that, “If you wish you may be searched in the presence of a gazetted officer or a Magistrate”.

Vijaysinh Chandubha Jadeja vs the State of Gujarat⁹:

Because of the Apex Court’s pronouncement that was laid down in the Constitutional Bench landmark judgement of State of Punjab Vs Balbir Singh and a divergent view and difference of opinion in many judgements, the present appeal to the Apex Court came to be.

This present Petition was specifically considering the question that, before the conducting of search, is the police officer conducting the operation/search required to ask the suspect that if the suspect wants to be produced before a gazetted officer or wants to be produced before a Magistrate for his personal search, or, under law, is it a mandatory requirement that the said suspect is required to be made aware/conscious about this specific legal right.

The court, in this matter before placing it in front of the Hon’ble Chief Justice of India, iterated that some of the decisions rendered by the court are conflicting with each other and different/divergent views have been taken then what was expressed in Baldev Singh case.

The court further observed that in Joseph Fernandez Vs. the state of Goa, mere Substantial Compliance of obligations stipulated under Section 50 has been upheld.

Another case, namely, Krishan Kanwar (Smt.) @ Thakuraeen Vs. State of Rajasthan¹⁰, the difficult issue of substantial compliance was taken into consideration, what is more, is that the court observed that for communicating the information regarding obligatory requirements of Section 50, any kind of prescribed format for communicating the specific information about a person’s legal rights that are mandatory to be given to the accused person is not available, and the court observed thus that:

• It is a necessity that the suspect (accused) must become conscious of this available legal right.
• The court must not look at the form of intimation but has to see the substance, in a specific manner specifically has not been prescribed.
• There cannot be a straightjacket formula for the same when it comes to the meeting of the mandatory elements of Section 50.
• If there is nothing mentioned in any concurrent document or the Search Mazhar¹¹ then it hangs on the verbal evidence of the officer conducting the said search of the accused.
• As the application of Section 50 is recurrent, cases under the NDPS Act, 1985 have steadily increased, it is important to issue clarity as regards its applicability.

So, the matter came to be listed with the Hon’ble Chief Justice of India; it was argued that the Parliament gave Section 50 of the NDPS Act, 1985 “due process” character, as by nature the provision is the only safeguard that has been provided to the accused (suspect), and hence the provision places to an extent, certain minimum procedural limits on the usage of these extensive statutory powers, which is achieved by strictly observing the established procedure under Section 50.

The Defendant’s Learned Counsel also made out strong points as follows:

• The safeguard is meant to ensure that a person does not get falsely implicated and the NDPS Act, 1985 is not abused, as there are consequences that are grave in nature that follows for the person so accused under the provisions.
• Trusting the decision of Beckodan Abdul Rahiman Vs. State of Kerala¹², it was suggested that the tough/punitive provisions throw a demanding obligation upon the prosecution for the strict compliances with precautions.
• The Learned Counsel also reasoned that ‘substantial compliance’ is not to be applied for neutralisation of significant protections that have been postulated by the Parliament.
• Due compliance or observance of this provision can never be just mere asking the accused just about being taken to the Gazetted Officer or in front of a Magistrate.

The Learned Counsel appearing for the State of Gujarat, submitted:

“That a close reading of Sections 41(1), 41(3), 42, 43 and 50 of the Narcotics Drugs and Psychotropic Substances Act, 1985, articulates that, while an officer is working under a warrant issued by a Magistrate under Section 41(1) it would certainly not fall into the scope of Section 50(1) of the Narcotics Drugs and Psychotropic Substances Act, 1985, because from the language stipulated under Section 41(2) of the Narcotics Drugs and Psychotropic Substances Act, 1985, it can be implied that the Central or the State Government, can empower a Gazetted officer who can either act himself or can under the provision of the Act authorise his/her subordinate(s)”.

However, there have been checks and balances provided under Sections 42(1) & 42(2) of the NDPS Act, 1985, over these officers who are acting under Section 42.

The Learned Counsel also appealed that the correct proposition of law was not laid down as there are differing views expressed by the Hon’ble Court as can be read in the case of Ahmed Vs. The state of Gujarat¹³. It was also argued that on reading Section 50 and its subsections, it becomes clear that the right afforded is not a right extended for the search of the said suspect but is simply to be taken in attendance of the closest Magistrate or Gazetted Officer, as a Gazetted officer or the said Magistrate are duly empowered to either direct that the person is searched or that the said person be discharged from detention ¹⁴.

Hon’ble Court then dealt with both the decisions of Prabha Shankar Dubey and Joseph Fernandez; both the cases had rejected/discarded with the ratio of the Hon’ble Court in the Baldev Singh Case and specified all the details of the concept of substantial compliance, in the manner indicated below:

• Communication of substantial compliance imparted by the concerned officer was made, as the officer only had Section 50 in the background and the concerned officer was unassisted by the understanding of the Baldev Singh case.
• The right under Section 50(1) is a safeguard for the suspected person and to keep a check on harm to the innocent, misuse of power by the police authorities and also for removing the accusations and claims of levying of false cases by the Police on people.
• The Empowered Officer must explain or familiarise, about the available legal right under Section 50 and follow it in its entirety.
• Obligation of the Empowered Officer for fulfilment of the requirements of Section 50(1) is absolutely mandatory and that too in a strict manner.
• If there is failure to discharge of the said provisions, then this would surely render the retrieval of the illegal article(s), i.e. Drugs/Contraband suspect and would then vitiate the conviction, but it would only apply when the recovery during search has been recorded to be from the person of the accused.
• After this, the accused person may or may not select to practice the right afforded to the accused.

The Hon’ble Court also made a crucial point here that in order to strengthen the case of the prosecution, the endeavour of the Empowered officer should, in the first instance be to, present such accused person in front of a Gazetted Officer or a Magistrate, as they enjoy much more confidence of the general public or the common people, as it will inevitably grant impartiality, authenticity, worthiness, transparency to the proceedings, but an absolute formula cannot be laid down in this regard.

Conclusion

The concept of Substantial compliance has been rejected by the Supreme Court; it was for a long time wrongly read into the dictum of Balbir Singh’s case, it was finally cleared out in the case of Vijaysinh Chandubha Jadeja Vs State of Gujarat.

Because of this wrong interpretation of Balbir Singh in Joseph Fernandez and Prabha Shankar Dubey, there were many undertrials who had been convicted by the lower courts and High Courts for on-spot substantial compliance by police officers, with the real purpose of Section 50 being utterly defeated and disregarded during the regime of the interpretations provided by Joseph Fernandez and Prabha Shankar Dubey, although, it was added by the Supreme Court that it is a matter of trial to establish the fulfilment of Section 50 and if the procedure prescribed had been followed to the letter, failing which would vitiate the trial and incinerate the case of the prosecution.

Now the current dictum and clarification given by the Jadeja Judgement has been reaffirmed in the case of Arif Khan @ Agha Khan Vs State of Uttarakhand¹⁵, so the prevailing scenario is that it is in the best interest of the Empowered Officer(s) to duly/strictly comply with the said provisions and not simply substantially comply before making arrest and seizure as it is the only real safeguard provided to the suspect/accused before making search or seizure from the said person; otherwise it would utterly destroy the case of the prosecution, as the degree of crime must be met with the same degree of strict compliances with the provisions of the law.

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