Case Study: State of NCT of Delhi v. Mohd. Jabir

Citation: Crl. A. No. 004931 / 2024

Date of Judgment: 2^nd December, 2024

Court: Supreme Court of India

Bench: Sanjiv Khanna (CJI), Sanjay Kumar (J)

Facts

• In 2024, Mohd. Jabir was apprehended under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) for possession of 500 grams of heroin, categorized as a commercial quantity. During the search, authorities issued a notice under Section 50 of the NDPS Act, which provides the accused the right to be searched in the presence of a Gazetted Officer or a Magistrate if they so request. However, the notice used the term " any Gazetted Officer" instead of " nearest Gazetted Officer," leading to a legal debate regarding compliance with the procedural safeguards mandated by the Act.
• The respondent subsequently filed for bail before the Delhi High Court, which granted the plea on March 28, 2023. The High Court held that the wording in the notice constituted a violation of Section 50 of the NDPS Act. It concluded that strict compliance with the statutory mandate was essential, and the deviation rendered the search process procedurally flawed. Following this judgment, bail was reportedly granted in multiple similar cases.
• Challenging the High Court's decision, the State of NCT of Delhi approached the Supreme Court. The State argued that the deviation in wording did not affect the substantive rights of the accused, as the respondent had been made aware of his rights under Section 50 and had chosen not to exercise the option for the presence of a Gazetted Officer or Magistrate. The Supreme Court admitted the appeal to address whether such a deviation amounted to non-compliance with Section 50 and its implications for the legitimacy of the proceedings under the NDPS Act. 

Decision of the Trial Court (Special Court (NDPS Court))

The trial court examined the compliance with Section 50 of the NDPS Act and acknowledged its mandatory nature. It concluded that, while the notice used the term "any Gazetted Officer" instead of "nearest Gazetted Officer," the substantive rights of the accused had not been violated. The court observed that the respondent was informed of his rights under the provision and did not insist on being searched in the presence of a specific Gazetted Officer or Magistrate. The trial court upheld the search's validity and allowed the case to proceed against the respondent. 

Decision of the High Court

The respondent moved the Delhi High Court for bail, granted on March 28, 2023. The High Court ruled that using “any Gazetted Officer" in the notice violated Section 50. It emphasized that strict compliance with the procedural safeguards of the NDPS Act was mandatory and that the deviation rendered the search process invalid. This decision became a precedent for granting bail in similar cases. 

Appeal to the Supreme Court

The State of NCT of Delhi challenged the High Court's decision, arguing that the deviation in the wording of the notice was a procedural irregularity that did not impact the respondent's substantive rights. The State contended that the respondent had been made aware of his rights under Section 50 and chose not to exercise the option for the presence of a Gazetted Officer or Magistrate. The matter was taken up by the Supreme Court to address whether such deviations amounted to non-compliance with Section 50 and their implications on the case's legitimacy. 

Decision of the Supreme Court

The Supreme Court overturned the Delhi High Court'sCourt's decision, holding that the wording of the notice using " any Gazetted Officer" instead of " nearest Gazetted Officer" under Section 50 of the NDPS Act did not amount to a violation of the provision.

The Court clarified that the intent of Section 50 is to ensure that the person being searched is informed of their right to be searched in the presence of a Gazetted Officer or Magistrate. It emphasized that the substantive compliance with this requirement is sufficient, and minor deviations in wording do not render the search invalid. In this case, the respondent was informed of his rights and did not exercise the option to insist on the presence of a Gazetted Officer or Magistrate, fulfilling the statutory mandate.

The Court further stated that strict compliance with Section 50 is necessary, but procedural safeguards should not be interpreted in a manner that defeats justice. It noted that the recovery of 500 grams of heroin, a commercial quantity, and the respondent's involvement in a similar prior case underscored the seriousness of the charges. The Supreme Court set aside the High Court's order granting bail, directed the respondent to surrender, and clarified that this ruling does not influence the trial's merits, which must proceed based on the evidence presented.

Key Legal Issues

1. Does the term " nearest Gazetted Officer" in Section 50(1) mandate geographical proximity?

No

The Supreme Court explained that the term "nearest" in Section 50(1) should be understood to ensure procedural convenience and avoid unnecessary delay. The intent behind the provision is to uphold the rights of the person being searched by offering an impartial third party's presence.

The court observed that using the term "any" Gazetted Officer does not inherently contravene the statutory mandate as long as the officer is not part of the raiding team. The focus is on expeditious compliance with the provision rather than rigid geographical constraints. By rejecting the High Court's insistence on strict adherence to the word " nearest," the Court emphasized practical application over semantic rigidity.

"We are unable to appreciate the reasoning given by the High Court in the impugned judgment, which states that use of the word ''any'' does not satisfy the mandate of the ''nearest'' Gazetted Officer and, hence, the respondent, Mohd. Jabir is entitled to bail."

2. Can a Gazetted Officer on the raiding team conduct the search under Section 50?

No

The provision's intent, as interpreted by the Court, is to ensure an independent oversight during searches to prevent potential abuse of power by the raiding officers. In this case, the Court highlighted that a Gazetted Officer involved in the raid cannot fulfill this role of independent scrutiny because their involvement in the investigation compromises neutrality. The Court emphasized that while the NDPS Act does not explicitly bar such officers, the spirit of the law prioritizes impartiality. Therefore, allowing a member of the raiding team to act as the Gazetted Officer would defeat the very purpose of Section 50.

"Section 50 casts an obligation on the police officer to apprise the person intended to be searched that under Section 50, he is required to be searched only before a Gazetted Officer or a Magistrate. The requirement is that the authorized officer must make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate. We are satisfied that in the present case, there is compliance with the said provision." 

3. Was the accused properly informed of the right to be searched in the presence of a Gazetted Officer or Magistrate?

Yes

The Court found that the procedural requirements of Section 50 were met. The accused was informed of the right to request a search in the presence of a Gazetted Officer or Magistrate, as mandated by law. The accused, however, chose not to exercise this right. The court noted that the provision obligates the officer to inform the suspect of their rights but does not compel them to avail them. The Court thus concluded that the accused was adequately apprised, fulfilling the statutory obligation.

"Section 50 casts an obligation on the police officer to apprise the person intended to be searched that under Section 50, he is required to be searched only before a Gazetted Officer or a Magistrate. The requirement is that the authorized officer must make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate. We are satisfied that in the present case, there is compliance with the said provision." 

4. Does non-compliance with Section 50 automatically entitle the accused to bail?

No

The Supreme Court highlighted that non-compliance with Section 50 of the NDPS Act does not automatically entitle an accused to bail unless such non-compliance results in substantial prejudice or violation of their legal rights. The procedural requirements of Section 50 are mandatory, but their violation must be assessed on a case-by-case basis to determine the extent of prejudice caused to the accused.

In this case, the Court reasoned that the accused was duly informed of the right to request a search in the presence of a Gazetted Officer or Magistrate, fulfilling the statutory requirement. Importantly, the accused chose not to exercise this right, and there was no evidence of procedural impropriety that could undermine the fairness of the trial.

Court Observations in Paragraph 3 refers to the decision in Arif Khan alias Agha Khan v. State of Uttarakhand[1], where it was observed that the requirements of Section 50 must be strictly complied with. However, the Court clarified that such compliance is procedural, and failure to comply only warrants bail when it materially impacts the accused's rights.

"The aforesaid ratio is not in conflict with the decision of this Court in Arif Khan alias Agha Khan v. State of Uttarakhand[2], wherein this Court has observed that requirements of Section 50 of the NDPS Act are mandatory and must be strictly complied with. Section 50 casts an obligation on the police officer to apprise the person intended to be searched that under Section 50, he is required to be searched only before a Gazetted Officer or a Magistrate. The requirement is that the authorized officer must make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate. We are satisfied that in the present case, there is compliance with the said provision."

Further, in Paragraph 5, the Court noted that the accused did not raise any objections at the time of the search and did not demonstrate how the alleged procedural lapse caused prejudice.

"We are informed that the trial is proceeding, and 5 out of 19 witnesses have already been examined. The trial may proceed expeditiously. Liberty is granted to the respondent, Mohd. Jabir, to apply for a grant of bail in case of a change in circumstances or if the trial gets prolonged due to reasons not attributable to the four respondents, Mohd. Jabir."

[1] AIR 2018 SUPREME COURT 2123.

[2] Ibid.

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