HC judge asks Chief Justice to refer matter about Section 50 of NDPS Act to larger bench due to divergent views by different benches

Read Order: Ravinder @ Ravi @ Ravinder Pal And Ors v. State Of Haryana

Vivek Gupta 

Chandigarh, August 9, 2021: At the Punjab and Haryana High Court, the bench of Justice Gurvinder Singh Gill has asked the Chief Justice to refer a matter pertaining to section 50 of the NDPS Act to a larger bench in view of different opinions held by the high court in earlier court orders on this issue. 

The bench passed the order while hearing a bail plea in the Narcotic Drugs and Psychotropic Substances Act (NDPS), 1985 case. Section 50 of the Act explains the ‘Conditions under which search of persons shall be conducted’. One of the most important provisions under the NDPS Act is the statutory right granted to a person suspected of possessing any narcotic drug or psychotropic substance to be searched before a Gazetted Officer or Magistrate under Section 50 of the Act.

In the present case, on December 22, 2020, a secret information was received by the police that Karamjit, Gurpreet Singh @ Gopi and Ravinder @ Ravi @ Ravinder Pal indulged in the sale of opium and that on the said date Gurpreet along with his companions would be coming in a white coloured car bearing a particular registration number to village Baba Ladhana in Haryana.

Pursuant to receipt of the said information, barricading was laid and upon noticing the car in question, with three occupants, the same was signalled to stop. Upon inquiry the driver disclosed his name as Gurpreet, while the passengers disclosed their names as Karamjit and Ravinder.

All three were extended an offer of in terms of Section 50 of the NDPS Act separately. The aforesaid three opted their search before a Magistrate. After arrival of Ishwar Singh, Naib Tehsildar, he was apprised about the facts, who enquired about the same from the three apprehended persons turn by turn and also perused the notices under Section 50 of the NDPS Act. Upon search of the said three persons, 3.5 kgs opium was recovered from Karamjit Singh.

Referring Joginder Singh Vs. State of Punjab, the counsel representing the accused argued before the bench that since the Naib Tehsildar did not himself also extend an offer in terms of Section 50 of the NDPS Act, therefore, the entire proceedings stand vitiated as it cannot be said that provisions of Section 50 of the NDPS Act have been complied with in letter and spirit.

In Joginder Singh’s case judgement, the coordinated bench of the HC held that the Gazetted Officer or Magistrate before whom any such person is brought shall also comply with the provision of Section 50 of the NDPS Act by apprising the person of his/her right. 

However, the bench of Justice Gill in the present case was of the view that the provisions of Section 50 of the NDPS Act would stand complied with once the empowered police officer apprises the apprehended person of his right to be searched in the presence of a Magistrate or a Gazetted Officer. 

In case such a person opts to be searched in the presence of a Gazetted Officer and a Magistrate and such Gazetted Officer or Magistrate comes to the spot, he at best is required to introduce himself being a Gazetted Officer or a Magistrate and apprise himself of the facts by generally questioning the police officials or the apprehended person but is not required to extend a fresh offer in terms of Section 50 of the NDPS Act. 

Justice Gill observed that in case Section 50 of the NDPS Act is to be interpreted in this manner that even the Gazetted Officer and Magistrate is required to give a fresh option, then it will be an endless exercise in as much as the accused may every time gave his option to be searched from some other officer. 

“The said matter needs to be examined by a Larger Bench in view of a different opinion held by this Bench. The matter, as such be referred to Hon’ble Chief Justice for referring the matter, if same deemed appropriate to a Larger Bench to settle the aforesaid controversy,” the bench said in its order.

Meanwhile, the bench granted bail to the accused in the present case.