In fact, the personal search of the applicant-appellant was conducted by the IO, but no gazetted officer was called at the spot. This was a clear violation of the guidelines issued by the Supreme Court.Holding 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”, the Punjab and Haryana High Court has suspended the sentence of a convict in an NDPS case, just 10 months after he was sentenced to 10 years’ imprisonment by a trial court in Sangrur.
A bench of Justice Jasjit Singh Bedi was hearing a petition filed by Akash Garg, who had been convicted under NDPS Act on November 15, 2021, for allegedly possessing 3,000 tablets of Alprazolam.
Seeking suspension of his sentence, Garg – through his counsel Advocate P S Sekhon – contended before the high court that there was non-compliance of Section 50 of the NDPS Act, as no offer apprising the applicant-appellant about his legal right to be searched in the presence of some gazetted officer or magistrate was made by the IO. In fact, the personal search of the applicant-appellant was conducted by the IO, but no gazetted officer was called at the spot. This was a clear violation of the guidelines issued by the Supreme Court.
Opposing the contention, the State counsel argued that there was no violation of Section 50 of the Act. In fact, the applicant-appellant had agreed to be searched by the IO and once he had reposed confidence in the IO and given his consent, the search cannot be vitiated on account of the purported non-compliance of Section 50 of the NDPS Act, the State counsel argued.
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Justice Bedi held, “It transpires that Section 50 of the NDPS Act provides two options to an accused. He could be searched by a gazetted officer or a magistrate or in their presence. There is absolutely no option of the investigating officer offering to search the accused or the search being conducted in his presence in the absence of a gazetted officer or magistrate. If this were to be permitted, it would have dangerous consequences.”
Justice Bedi added, “An accused could be pressurised to consent to be searched by the investigating officer, who was neither a gazetted officer or a magistrate, or in his presence by some junior officer. Thus, by design the legislature has excluded all others except a gazetted officer or a magistrate before whom search can be conducted. Therefore, the offering of a third option of the search being conducted in the presence of the investigating officer or by him is prohibited.”
The HC cited a judgment of the apex court (Vijaysinh Chandubha Jadeja case) wherein it has been clearly held that the accused must be informed of his right “to be searched in the presence of a gazetted officer or a magistrate”.
“Mere information to an accused that he can be searched before a gazetted officer or magistrate has not been held to be a sufficient compliance. If that be so, then the question of the investigating officer offering himself to search the accused or search being conducted in his presence can never be compliance of Section 50 of the NDPS Act.” added the HC.
Justice Bedi said that in Arif Khan alias Agha Khan case, the Supreme Court had held that if two options are given of being searched in the presence of a gazetted officer or magistrate, but the accused agrees to be searched by the investigating officer, who is not a gazetted officer then it would amount to violation of Section 50 of the NDPS Act.