Presence Of Magistrate During Search Of Contraband Articles Not Mandatory If Accused Waives His Right: Delhi HC

What Did The Court Say

• If a suspect held under the NDPS Act is informed about his right to be searched in front of a Magistrate or a Gazetted Officer and if he chooses to waive off that right, then the search can proceed without doing so.
• The decision was given by the Division Bench of Justices Siddharth Mridul and Talwant Singh.
• The Bench relied on the Constitution Bench judgement in Vijaysingh Chandubha Jadeja V. State of Gujarat.
• In that case, it was held that the suspect may or may not choose to exercise that right under the provision.

Background

• The case was of Nabi Alam alias Abbas v. State (Govt Of Nct Of Delhi).
• The Division Bench was answering a query made by the Single Bench of Justice Suresh Kumar kait.
• There had been 2 contradictory judgments.
• In the case of Innocent Uzoma V. State, it was held by Justice Vibhu Bakhru that the presence of a Magistrate was dependent on the desire of the accused.
• However, in Vaibhav Gupta V. State, it was held that compliance with Section 50 of the NDPS act was mandatory even if the accused waived off his right.

What Does The NDPS Act Say

• The Narcotic Drugs and Psychotropic substances act, 1985, prohibits a person from engaging in production, sale, transport, possession, consumption and purchasing of any narcotic drugs or psychotropic substances.
• Section 50 of the Act states that when an Officer is duly authorised to search any person , he shall, upon the requirement of such person, take him to the nearest Gazetted Officer or the nearest Magistrate without unnecessary delay.

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