NDPS Act: Supreme Court explains law on presence of gazetted officer during search

The Supreme Court recently clarified the intent and scope of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) which deals with search notices that have to be served before searching any person suspected of carrying illegal drugs [State of NCT vs Mohd Jabir]..The Bench of Chief Justice of India Sanjiv Khanna and Justice PV Sanjay Kumar observed that the intent behind Section 50 is only to ensure that a person about to be searched is made aware of an option for the search to be held in the presence of a neutral third party, and nothing more."It is obvious that the intent behind the provision is to ensure that the person about to be searched is made aware of the option to be taken before a third person other than the one who is conducting the search," the December 2 ruling said. .In doing so, the Court also held that the use of the phrase "any gazetted officer" - instead of the slightly dissimilar phrase used in Section 50, which is "nearest gazetted officer" - would not render the search notice invalid.There is no difference between "nearest" or "any" gazetted officer", the top court opined. "Use of the expression 'nearest' refers to the convenience as the suspect is to be searched. Delay should be avoided, as is reflected from the use of the word 'unnecessary delay' ... Nothing more is articulated and meant by the words used, or the intent behind the provision," it said. .Section 50 of NDPS Act requires that the person being searched must be informed of his right to have the search conducted in the presence of the "nearest" gazetted officer of relevant government departments or the nearest magistrate.The use of the word "any" instead of "nearest" in one such search notice served by the Narcotic Cell of the Delhi Police in 2020 led the Delhi High Court to grant bail to one, Mohd Jabir, who had been accused of heroin possession..The Delhi High Court reasoned that the use of the word "nearest" in Section 50 of the NDPS Act was intentional and meant to ensure neutrality and independence during drug searches.The High Court opined that by using the word "any" instead of "nearest", the accused was misled by the police about his rights, which was why he gave up his right to have the search conducted in the presence of a gazetted officer. The High Court added that such a violation of Section 50 of the NDPS Act was sufficient to grant bail to Jabir. .However, the Supreme Court refused to agree with the High Court's reasoning. It disagreed with the idea that the reference to "any" gazetted officer may have led the accused to assume that such gazetted officer may be part of the raid team itself. "The option given to the respondent, Mohd. Jabir, about to be searched, with reference to a Gazetted Officer or a Magistrate, does not refer to the authorized person in the raiding team itself," the top court found. The Supreme Court concluded that there was sufficient compliance with Section 50 of the NDPS Act and cancelled the bail granted to Jabir..[Read Judgment]