Source: Delhi High Court  

Why in News?

A Single bench of Justice Anish Dayal held that “Section 50 of the NDPS Act, 1950, requires options to be given to the person being searched; in fact an affirmative option is to be exercised for the search being conducted before the nearest gazetted Officer/Magistrate. Having provided a pre-typed proforma, with the less desirable option and getting it endorsed by the signatures of the person being searched, that too in the heat of the moment of the raid/seizure, is a practice which is to be deprecated.”           

• The Delhi High Court held this in the case of Pauline Nalwoga v. Customs.  

What was the Background of Pauline Nalwoga v. Customs? 

• According to the prosecution, on 11th January 2022, the applicant arrived at Terminal-3, Indira Gandhi International Airport, New Delhi, by Flight G9 721 from Entebbe, Uganda, via Sharjah, UAE. The applicant carried a red trolley bag and a leather handbag. 
• Upon arrival, her baggage was scanned via the X-Ray inspection machine, and she passed through a Door Frame Metal detector, both revealing nothing suspicious on her person. However, suspicious images were noted in her baggage during the X-ray check, prompting her to be taken to the Customs Preventive Room for further inspection. When questioned, she denied carrying any contraband. 
• Two panch witnesses were called, and notices under Section 50 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) and Section 102 of the Customs Act, 1962, were issued. The applicant consented to a search by a lady Customs Officer. 
• While her personal search yielded nothing objectionable, a search of her luggage uncovered 107 capsules wrapped in transparent adhesive tape, containing a total of 1,253 grams of a substance later identified as heroin. 
• The contraband, weighing 1,061 grams (commercial quantity), valued at approximately Rs. 7.43 crores, was seized under Section 43(a) of the NDPS Act and Section 110 of the Customs Act, citing a violation of Sections 8 and 23 of the NDPS Act. The applicant was arrested the same day and has remained in judicial custody since. 
• The applicant sought bail from the Special Judge (NDPS Act) Court, Delhi, but her application was dismissed on 9th February 2023. 
• The Trial Court cited the recovery of a commercial quantity of contraband, invoking Section 37 of the NDPS Act, which sets a higher threshold for granting bail in such cases. The applicant has now submitted the bail application to the Delhi High Court. 

What were the Court’s Observations? 

• The Court stated that proforma notices under Section 50 should ideally have the two options: first, that the person requires the personal search to be done before a Gazetted Officer/Magistrate and second, that the person to be searched has no objection to being searched by an officer present (lady officer in case the person to be searched is female). 
• Section 50 needs to be complied with only in cases of personal search and not where the bag of the person being searched. Here, it noted that no personal search of the accused was conducted and thus Section 50 would not apply. 

What are the Conditions under Section 50 of NDPS? 

Section 50 of the NDPS lays down the conditions under which a search of persons shall be conducted. The key points of this section are: 

• Requirement to Take the Person to a Gazetted Officer or Magistrate: 
  • If a person requests, the officer conducting the search must take the person to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate, without unnecessary delay. 
  • The officer may detain the person until they can bring them before the Gazetted Officer or Magistrate. 
• Determination of Reasonable Grounds for Search:   
  • The Gazetted Officer or Magistrate before whom the person is brought shall, if they see no reasonable ground for search, forthwith discharge the person. 
  • If they find reasonable grounds, they shall direct that the search be made. 
• Search of Female Persons: 
  • No female shall be searched by anyone except a female. 
• Immediate Search in Certain Cases: 
  • If the officer believes that it is not possible to take the person to the nearest Gazetted Officer or Magistrate without the possibility of the person parting with possession of any narcotic drug, psychotropic substance, controlled substance, article, or document, they may proceed to search the person as per the provisions of Section 100 of the Code of Criminal Procedure, 1973. 
  • After such a search, the officer must record the reasons for their belief that necessitated the immediate search and send a copy to their immediate official superior within 72 hours. 

Case Laws 

Union of India v. Ram Samujh (1999) 

• The Supreme Court held that Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, 
  • there are reasonable grounds for believing that the accused is not guilty of such offence; and 
  • that he is not likely to commit any offence while on bail