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Synopsis

While suspending the sentence of a convict in an NDPS case, the Punjab and Haryana High Court held that there is absolutely no option of the investigating officer (IO) offering to search the accused or the search being conducted in his presence in the absence of a gazetted officer or magistrate.

A single-judge bench of Justice Jasjit Singh Bedi was hearing a petition filed by one Akash Garg who was convicted under the Narcotic Drugs and Psychotropic Substances (NDPS) Act on November 15, 2021, for allegedly possessing 3,000 Alprazolam tablets.

The counsel for Garg contended that the IO was found to have violated Section 50 of the NDPS Act by failing to inform Garg of his legal right to be searched in the presence of a gazetted officer or magistrate.

It was further stated the IO conducted a personal search of Garg but no gazetted officer was called to the scene, and this was a clear violation of the Apex Court’s guidelines.

On the contrary, the ocunsel for State argued that there had been no violation of Section 50 of the Act. In fact, Garg had trusted the IO, given his consent, and agreed to be searched by him. Therefore, the search could not be deemed invalid because of the alleged violation of Section 50 of the NDPS Act.

The court while suspending the sentence relied on an Apex Court judgment in the Vijaysinh Chandubha Jadeja case wherein it was stated that the accused must be informed of his right "to be searched in the presence of a gazetted officer or a magistrate."

Court further stated that merely informing an accused that he can be searched in front of a gazetted officer or magistrate has not been held to be sufficient compliance, if that be the case, then the question of the IO offering himself to search the accused or search being conducted in his presence can never be in compliance with Section 50 of the NDPS Act.

Court observed that as per Section 50 of the NDPS Act, Garg had only two options that he could be searched in the presence of a gazetted officer or a magistrate. “There is absolutely no option of the investigating officer (IO) offering to search the accused or the search being conducted in his presence in the absence of a gazetted officer or magistrate, and if it was allowed, it would have dangerous consequences,” it said.

Furthermore, Court observed that an accused could have been pressurized to consent to being searched by the IO, who was neither a gazetted officer nor a magistrate, or in his presence by some junior officer. Thus, by law, the legislature has barred all others from conducting searches other than a gazetted officer or a magistrate, Court stated. 

“Therefore, the offering of a third option of the search being conducted in the presence of the IO or by him is prohibited,” court concluded.

Source: The Indian Express