The Weekly Obiter

REQUIREMENTS OF SECTION 50 OF NARCOTIC DRUGS AND PSYCHOTROPIC SUB-STANCES ACT, 1985 (NDPS ACT) ARE MANDATORY AND NOT DIRECTORY: SUPREME COURT

May 16, 2018

 The Hon’ble Supreme Court of India in a matter titled Arif Khan versus State of Uttarakhand bearing Criminal Appeal No. 273 of 2007 observed that the requirements under Section- 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) are mandatory and search and recovery of contraband in the presence of a Gazetted Officer or a Magistrate is necessary.
The Hon’ble Supreme Court held that:
“Since the non-compliance of the mandatory procedure prescribed under Section 50 of the NDPS Act is fatal to the prosecution case and, in this case, we have found that the prosecution has failed to prove the compliance as required in law, the appellant is entitled to claim its benefit to seek his acquittal.”
The Hon’ble Supreme Court established that the law mandates that a search of this nature is carried out in presence of designated officers and not otherwise. The Court further held that this provision needs strict compliance. The Court observed that the officers of the raiding party were not empowered to make a search without the presence of a gazetted officer or a Magistrate and effectively overstepped their capacity in view of the instant case. In view of the same, the accused was acquitted.

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