Drugs seizure: HC releases convict as recovery not made before gazetted officer

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, the HC said

CHANDIGARH: The Punjab and Haryana high court has suspended sentence of a drugs case convict, as it found that cops who arrested the convict did not search him in the presence of a gazetted officer.

The Punjab and Haryana high court has suspended sentence of a drugs case convict, as it found that cops who arrested the convict did not search him in the presence of a gazetted officer.

“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. 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,” the bench of justice Jasjit Singh Bedi, observed allowing release, pending decision on appeal, of one, Akash Garg, given 10 year jail by a Sangrur court in November 2021.

The plea had argued that there is non-compliance of Section 50 of the NDPS Act as appellant was not apprised of his legal right to be searched in the presence of some Gazetted Officer or Magistrate was given by the Investigating Officer. The personal search was conducted by the Investigating Officer but no Gazetted Officer was called at the spot. This was in clear violation of the guidelines issued by the Supreme Court.

As per FIR, the police party was on patrolling duty at about 8.15 pm, when a person was seen coming on a motorcycle, who on seeing the policy party was perplexed and tried to turn back. On the basis of suspicion, he was held and on search being conducted he was found in possession of 3000 tablets of Alprazolam. The police had claimed that he offered to be searched by the cops present on the spot.

The court observed that the Supreme Court in a number of judgments has held that when the law provides for the doing of an act in a particular manner, it necessarily prohibits the doing of that act in any other manner. It added that Supreme Court, 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.

“.. 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 bench ruled with a finding that there is prima facie violation of Section 50 of the NDPS Act in the case in hand. The Section 50 of the NDPS Act, which is a necessary safeguard for search and seizure available to an accused must be strictly complied with, it added.