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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 & CRL.M.(BAIL) 555/2021] by a two judge bench comprising Justice Siddharth Mridul and Justice Talwant Singh on 4^th 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?”

After considering the facts and arguments presented, the court undertook a proper analyses of the concerned Section and perused the judgments given in  the case of State of Punjab v. Baldev Singh, AIR 1999 SC 2378 and Arif Khan @ Agha Khan v. State of Uttarakhand AIR 2018 SCC 2123 to arrive on the final verdict that “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.” And the bail application was ordered to be listed before the learned Single Judge for further proceedings, in accordance with law on 06.07.2021.

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