The Narcotic Drugs and Psychotropic Substances(NDPS) Act was enacted in the year 1985 for regulation and control of abuse and drug trafficking through its stringent provisions. The provisions under the special enactment relating to search and seizure must be complied strictly with. The various provisions have been prescribed for search and seizure in any enclosed place, a public spot or of a person.
There is an extraordinary discussion whether Section 50 of the Act that describes the procedure for search of an individual is directory or mandatory. The State’s power of search and seizure which is exercised in the public interest needs to be directed and constrained by a valid law.
Section 50 of the NDPS Act, 1985
Section 50 of the NDPS Act, 1985 characterizes the procedure under which search of an individual should be carried out. It guarantees the accused the right to be searched either before a Magistrate or a Gazetted Officer as it would add more credibility to the search procedure. The provision of Section 50 ensures the individual freedom of an accused person. Further, sub-Section (4) of Section 50, provides that no female can be searched by anybody aside from a female. It was also upheld in Smt. Geeta v. State (Delhi & Admn.). It is implicit that strict regard must be made to decency and morality while searching a female.
In Vijaysinh Chandubha Jadeja v. State of Gujarat  the Hon’ble Supreme Court opined that the requirements of Section 50 of the NDPS Act are:
- Informing the suspected persons of right under Section 50 and;
- Search in presence of Gazetted Officers or Magistrate if it is desired by the suspect and held to be mandatory.
The failure to illuminate and apprise the accused that he is entitled to be searched before a Gazetted Officer or a Magistrate would render the whole search invalid as the accused would not have the opportunity to make use of the defence available in Section 50. The observance of Section 50 is expected to fill a double need to secure an individual against malicious charges as well as to give reliability to the whole process of the search. This was observed by the Hon’ble High Court of Delhi in the case of Lacho Devi v. State,  that the reason for illuminating an accused that that he is entitled to be searched before a Gazetted Officer or a Magistrate is to guarantee that there is a defend against planting any implicating article.
Confinement of protection to only search of person
Search of a vehicle or bag does not come under the ambit of Section 50 . In Ali Mustaffa Abdul Rahman Moosa v. Province of Kerala,  the Hon’ble High Court has held that Section 50 was attracted in the event that charas was discovered in the accused’s bag and the bag was in possession of the accused. Since the investigating officer did not comply with the mandatory provision, the Court set aside the conviction. In Amarjit Singh v. Province of Delhi,  accused were discovered to be in control of the jeep and from which contraband was recuperated. The Hon’ble High Court of Delhi stated that:
“The words personal search appearing in Section 50 of the Act would, in our view, mean that if accused is in possession of the drug, maybe on his body or maybe on a particular vehicle in which he is found to be in possession or maybe having the contraband in his bags which he may be carrying of which he was in physical possession at the relevant time, the provision of Section 50 of the Act have to be complied with if there is prior information with the authorities with regard to the possibility of a suspect being in possession of contraband drugs.” 
In Ramji Duda Makwana v. State of Maharashtra,  the Hon’ble High court of Bombay observed that careful consideration of the provisions of Section 50 would demonstrate that a wide and positive demarcation is required to be made between the situations where the contraband was recuperated from spots and situations where the contraband was claimed to have been recovered from the person. Similarly in Sarjudas and other v. State of Gujarat,  charas was recovered from a bag which was lying on the scooter of the accused. Hence, the Hon’ble Supreme Court held that search would not become unlawful just because the accused were not illuminated that he is entitled to be searched before a Gazetted Officer or a Magistrate.
Interpretation of the term ‘Search’
The Hon’ble Apex Court held in State of Punjab v. Baldev Singh  that the necessity of notifying the accused about his privilege under Section 50 appears when search of the accused has to be done. It is an extension of the right available under subsection (3) of Section 100 of the Code of Criminal Procedure, 1973.
The Madras High Court explained that the word ‘search’ infers an exploratory assessment or testing into or searching out something which is covered up, fixed or suspected and not open, uncovered or illustrated. In Mukkan @ Balmukund v. State of Madhya Pradesh  the Hon’ble High Court of M.P. held that anything conveyed by the individual to be looked in his grasp, body or head would likewise be with the rest of his personal effects. The Hon’ble High Court of Gujarat in Bherulal Viraji Kumawat v. State of Gujarat  was of the view that the search of the bag of the accused is equivalent to the search of the person as per Section 50.
Section 114 of the Indian Evidence Act, 1872
Mandatory statutory provision under Section 50 of the NDPS Act, 1985 demands complete observance and not fractional observance. Even under Section 114 of the Indian Evidence Act, 1872 there can be no presumption of compliance. In Rashidi Ally Chigale v. State of Maharashtra,  a certain amount of contraband was recovered. There were two Gazetted Officers in the raiding party. The accused was notified that he is entitled to be searched before a Gazetted Officer or a Magistrate. The Hon’ble High Court of Bombay held that because of the presence of the Gazetted Officers in the raiding party, the whole process of the search is vitiated.
If the evidence of the prosecution does not sufficiently convince that the accused has been provided an opportunity to exercise his legal right of being searched before a Gazetted Officer or a Magistrate, no presumption can be drawn under Section 114 of the Indian Evidence Act, 1872. In the event that no evidence with the impact has been given, the Court must presume that the individual was not notified of his right available under Section 50.
The Mandatory Nature of Section 50 of the NDPS Act, 1985
The Hon’ble Supreme Court in Dilip v. State of Madhya Pradesh  and State of Rajasthan v. Parmanand  held that non-compliance of Section 50 was fatal, vitiating the entire prosecution. Thus, the provision of Section 50 has been held to be mandatorily complied with, in failure of which the trial would be vitiated.
In Shakil Ahmed @ Pappu v. State,  cannabis was recovered. Accused was notified that he could be searched before a Gazetted Officer or a Magistrate. Yet, it was not communicated to him that it was his legal right. It was held to be violative of Section 50 and the conviction was set aside.
Earlier the rule was that the accused person may or may not choose to exercise the right provided to him under Section 50 by intimating the investigating officer or the officer on duty that he waives his right and such must be recorded. But a recent judgment by Hon’ble High Court of Delhi in Dharambir v. State  has ruled that even if the accused person waives off his right under Section 50, the compliance of the said Section that the accused shall be searched in presence of a Gazetted Officer or a Magistrate is mandatory.
After analysing various judgments given regarding interpretation of Section 50 of NDPS Act, 1985 there remains no room for doubt that the said provision has to be mandatorily complied with. Section 50 of the Act makes it obligatory for the investigating officer carrying out the search to notify the accused regarding his legal entitlement to be searched in presence of a Gazetted Officer or Magistrate. This provision has been incorporated with the conspicuous goal to conduct a search properly and evade any harm or wrong to any innocent parties and to stay away from allegations of planting or fabrication of any false evidence by the prosecution authority.
Even the waiver of the right himself by the accused does not give the liberty to the officers to not comply with the requisites of Section 50. The provision is mandatory and not purely procedural and breach thereof vitiates the trial. The rationale behind making the said provisions mandatory could be to establish harmony between the protection of individual liberty and needs of law enforcement.
 2000 CriLJ 4672.
 (2011) 1 SCC 609.
 1991 CriLJ 2793.
 Ramji Duda Makwana v. State of Maharashtra (1994) CriLJ 1987 (Bom).
 1994 AIR SCW 4393.
 1995 CriLJ 1623 (Del).
 1994 CrLJ 1987.
 1999 (8) SCC 508.
 AIR 1994 SC 1872.
 1997 CrLJ 3885.
 (1998) 3 GLR 2497.
 2003 (2) ALD Cri 117.
 (2007) 1 SCC 450.
 AIR 2014 SC 1384.
 2000 CriLJ 153.
 2018 SCC OnLine Del 12305.
BY APURVA MEHTA | NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW (NUSRL), RANCHI