High Court divided over interpretation of search provision

Another opinion is that the gazetted officer or the magistrate, too, are required to give a fresh option to the apprehended person.

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Justice Court
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Last Updated on August 11, 2021 by The Health Master

More than three decades after the NDPS Act came into being, the Punjab and Haryana High Court is divided over the interpretation of a provision on searching the apprehended person.

One opinion suggests only the empowered police officer is required to apprise the apprehended person of his right to be searched in the presence of a magistrate or a gazetted officer. Another opinion is that the gazetted officer or the magistrate, too, are required to give a fresh option to the apprehended person.

In view of the difference in opinions, Justice Gurvinder Singh Gill of the HC has referred the matter to a larger Bench for adjudication. “The matter needs to be examined by a larger Bench in view of a different opinion held by this Bench.

The matter, as such be referred to the Chief Justice for referring the matter, if same deemed appropriate, to a larger Bench to settle the controversy,” Justice Gill asserted.

Taking up two regular bail pleas, he observed the court was of the opinion that the provisions of Section 50, NDPS Act, would stand complied with once the empowered cop apprised the apprehended person of his right to be searched in the presence of a magistrate or a gazetted officer.

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Such gazetted officer/magistrate would come to the spot. He, at best, was required to introduce himself. He would then apprise himself of the facts by generally questioning the cops or the apprehended person. But he was not required to extend fresh offer in terms of Section 50 of the NDPS Act.

In case the section was to be interpreted to mean that even the gazetted officer and the magistrate were required to give a fresh option, it would be an endless exercise. The accused may every time give his option to be searched from some other cop.

Justice Gill said a coordinate Bench, in Joginder Singh versus the State of Punjab, expressed the other opinion. It said: “The gazetted officer or magistrate before whom any such person is brought shall also comply with the provision of Section 50 of the NDPS Act by apprising the person of his/her right.”

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