While not leaving even an iota of doubt, the Delhi High Court has in a most remarkable, robust, rational and recent judgment titled State vs Denis Jauregul Mendizabal in CRL.L.P. 241/2020 that was reserved on December 15, 2022 and then finally pronounced on December 22, 2022 has minced just no words to observe that refusal by an accused to get a search conducted before a Gazetted Officer or a Magistrate under Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 would be vitiated if he misunderstands, misinterprets or even due to miscommunication of the questions put to him. The Single Judge Bench of Hon’ble Mr Justice Anish Dayal observed explicitly that the requirements of Section 50 being mandatory in nature, are in consonance with the right of an accused to know of his legal rights. The Court said without mincing any words that, “The compliance of such requirements should therefore, be complete and not left in doubt. A mandatory requirement by definition, has to be complied with in toto, in its full letter and spirit, and not as a halfway measure or in a patchy, perfunctory manner or deficient manner.” It must be noted that the Delhi High Court had made these observations while dismissing the appeal filed by the Delhi Police challenging the order of a special judge acquitting a Spanish national.
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench of Hon’ble Mr Justice Anish Dayal sets the ball in motion by first and foremost putting forth in para 1 that, “This petition has been moved by the State seeking leave to appeal against the impugned judgment passed by the Special Judge, NDPS Act (Central District), Tis Hazari Courts, Delhi in FIR No.115/2013 under section 22, 23 read with section 28 and 29 of NDPS Act. Learned APP for the State has submitted that the basis of accusation is that the accused-respondent was Spanish National who was staying in some hotel at Paharganj and was indulging in procuring and export of Ketamine, a psychotropic substance to foreign countries through courier. Pursuant to raid based on secret information, the accused was apprehended and 4 kgs of Ketamine recovered from the rucksack being carried by him. Vide the impugned judgment, the Ld. Special Judge has concluded that the prosecution has been able to establish that 4 kgs of Ketamine from the conscious possession of the accused, however the recovery stands vitiated for non compliance of mandatory procedural safeguards laid down in Section 50 of the Act. As a consequence thereof, the accused was acquitted of all the charges against him in the said case.”
It is worth paying attention that the Bench envisages in para 4 that, “As per the following extract from Arif Khan @ Agha v. State of Uttrakhand (2018) 18 SCC 380, it is evident that the Hon’ble Supreme Court has stressed not only on ‘substantial compliance’ but full compliance of procedures enumerated in Section 50 of the Act:
“24.1. First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or Gazetted Officer.
24.2. Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband “charas” was not made from the appellant in the presence of any Magistrate or Gazetted Officer.
24.3. Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband “charas” from him, was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband “charas” as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a Gazetted Officer.
24.4. Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer.
25. Though, the prosecution examined as many as five police officials (PW 1 to PW 5) of the raiding police party but none of them deposed that the search/recovery was made in presence of any Magistrate or a Gazetted Officer.
26. For the aforementioned reasons, we are of the considered opinion that the prosecution was not able to prove that the search and recovery of the contraband (charas) made from the appellant was in accordance with the procedure prescribed under Section 50 of the NDPS Act. 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.
27. In the light of the foregoing discussion, the appeal succeeds and is allowed. The impugned judgment is set aside. As a consequence thereof, the appellant’s conviction is set aside and he is acquitted of the charges in question.” (emphasis supplied).”
Be it also noted, the Bench points out in para 6 that, “What prevailed with the Ld. Special Judge was that the accused was a Spanish national on a temporary tourist visa and since he was informed of his rights in English, he would have not been able to understand the scope of his legal rights in any other language than Spanish. The accused had, in his statement recorded under section 313 Cr.P.C, denied knowing any other language than Spanish. Further, no independent witness was joined when the legal rights were explained to him. A perusal of Ex. PW-5/B (notice under Section 50 NDPS Act) shows that there was no fluency/proficiency on the part of the accused and that the writing was clumsy and contrived. Also Ex. PW5/B alluded to notice under section 50 NDPS Act as under section 550 NDPS Act, an error in all probability capable of being made when a pre-written portion is being copied as it is. The refusal of his legal rights under Section 50 was therefore, not on his conscious volition but lack of understanding the scope of his rights under the statute. Further, Ld. Special Judge has noted that there was no effort discernible at any stage on part of the empowered officer to secure presence of any Gazetted Officer or a Magistrate and chose to rely upon the written refusal of the accused rendered in English language. This according to Ld. Special Judge does not comply with the mandate of the law as has been held in various decisions of the Hon’ble Supreme Court and this Court.”
Most significantly, the Bench minces no words to state in para 12 what constitutes the cornerstone of this notable judgment wherein it is held that, “The requirements of Section 50 NDPS Act being mandatory, as has been clearly held by the Hon’ble Supreme Court are in consonance with the right of the accused to know of his legal rights. The compliance of such requirements should therefore, be complete and not left in doubt. A mandatory requirement by definition, has to be complied with in toto, in its full letter and spirit, and not as a halfway measure or in a patchy, perfunctory manner or deficient manner. It is evident from the facts and circumstances stated above and as noted in the impugned order that the accused did not have the opportunity of a translator or an interpreter at a stage when he was accosted and the search was conducted and scope of his legal rights were attempted to be explained to him under the framework of Section 50 NDPS Act. The so called alleged refusal by the accused to get a search conducted before a Gazetted Officer or a Magistrate would therefore, in the considered opinion of this Court, be vitiated on account of his partunderstanding/misunderstanding/mis-interpretation or even miscommunication of the questions put to him and/or his response.”
Furthermore, the Bench then states in para 13 that, “The reliance by the State on this Court’s decision in Innocent Uzoma v. State (supra) and on “if such person so requires” would not be applicable since that is predicated on the person himself/herself being able to understand the question, the procedure and appreciate the conspectus of his/her legal rights. In this case, it is apparent that the accused was not in a position to understand the importance of what was being communicated and its impact on his life. Therefore, this Court finds no infirmity in the impugned order.”
What’s more, the Bench then states upfront in para 14 that, “This petition is therefore dismissed.”
Finally, the Bench then concludes by holding in para 15 that, “Order be uploaded on website of this Court.”
All told, we thus see that the Delhi High Court has made it indubitably clear that the accused’s refusal to get a search conducted under Section 50 of NDPS Act would be vitiated if he misunderstands the questions put to him. It is also made clear by the Court that the requirements of Section 50 NDPS Act being mandatory, as has been clearly held by the Hon’ble Supreme Court are in consonance with the right of the accused to know of his legal rights. We thus see that the Delhi High Court has made it absolutely clear that the compliance of such requirements should therefore, be complete and not left in doubt. No denying it!
Sanjeev Sirohi