Presence of Magistrate not mandatory while searching a suspect in NDPS Case, If the Person waives it

The Delhi High Court has ruled that once a suspect under NDPS Act is informed about his right to be searched before a Magistrate/Gazetted officer, he chooses not to exercise this right. Therefore, the empowered officer can search without producing the suspect before a Magistrate or Gazetted officer for this purpose.

The Division Bench of Hon’ble Justice Siddharth Mridul and Hon’ble Justice Talwant Singh made this observation while answering a reference made by a Single Bench.

According to the Court, if such person so requires, as mentioned in Section 50(1) of NDPS Act will become futile if the search that has to be searched has expressly waived off such a requisition as mentioned in the opening sentence of sub-Section (2) of Section 50 of the said 43,41 and 42 then he can take the suspect to the nearest Magistrate/Gazetted officer without any delay as mention in Section 42.

It is a settled law that the right of a suspect accused of having contraband on him has to be informed about his statutory right to be searched before a Magistrate or gazetted officer even after he has waived off this right.

To come to this conclusion, the Court relied on Apex Court’s judgment in Vijaysinh Chandubha Jadeja vs the State of Government, where the Court ruled that the suspect might or might not exercise his right given under the provision.

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Against this backdrop, the Court ruled that there is no doubt that once a suspect has waived off his statutory right to be searched before a Magistrate/ gazetted officer, then the search can be done as well.

Background:-

This order was passed when Single Judge Suresh Kait referred the case to the Division Bench after noticing two contradictory judgements of a Single Bench.

In Innocent Uzoma vs State, Hon’ble Justice Vibhu Bakhru ruled that the Magistrate’s presence was contingent on the accused’s desire.

However, in Vaibhav Gupta vs State, the Court held compliance with Section 50 of NDPS Act was compulsory even if the accused denies the same. Still, the search has to be conducted before a Magistrate/Gazetted Officer.

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