PANKAJ BHANDARI,J. - (1.) The office was directed to permit all lawyers to give list of the cases, which they considered to be under the category, where provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act ') have not been complied with, and to list the same. In compliance thereof, these cases have come up before this Court.
(2.) Counsel for the appellants have placed reliance on Vijaysinh Chandubha Jadeja v. State of Gujarat, AIR 2011 SC 77, wherein the Constitutional Bench of the Hon 'ble Apex Court was dealing with the duty cast upon a Magistrate under Section 50 of the NDPS Act. The Apex Court in para 22 concluded as under: "22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50 (1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted Officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer under subsection (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed in Re: Presidential Poll, it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponent is, the intention of the law maker expressed in the law itself, taken as a whole." We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (2000 Cri LJ 3485) : (AIR 2000 SC 3502) (supra) and Prabha Shanker Dubey (AIR 2004 SC 486) (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Balde v. Singh 's case (1999 Cri LJ 3672) : (AIR 1999 SC 2378) (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives option to the empowered officer to take such person (suspect) either before the nearest Gazetted Officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well.
(3.) In Dilip v. State of M.P., (2007) 1 SCC 450 : (AIR 2007 SC 369), the Apex Court observed that since contraband was recovered from scooter, provisions of Section 50 might not have been required to be complied with so far as the search of scooter was concerned, but, keeping in view the fact that the person of the appellants were also searched, it was obligatory on the part of the officers to comply with the provisions of Section 50 of the NDPS Act.;