Fresh consent not required for personal search in drug cases: HC
The Punjab and Haryana High Court has ruled that fresh consent for personal searches under Section 50 of the Narcotic Drugs and Psychotropic Substances Act is not required when an accused opts to be searched in the presence of a magistrate or a gazetted officer. The court clarified that additional consent was not needed for the search to proceed once an accused was informed of his statutory right to be searched before a gazetted officer or magistrate.
The ruling by the Division Bench of Justice Sureshwar Thakur and Justice Sudeepti Sharma came in response to conflicting decisions by high court Benches on the necessity of a second consent for personal searches to be conducted by the officers after the initial refusal of the accused to be searched by the investigating officer.
The Bench observed: “In both the situations — when the gazetted officer or the magistrate proceeds to the crime site for the relevant purpose or when the accused is produced before such officers — there is no necessity for obtaining fresh consent from the accused for conducting a personal search.”
The court stressed that the investigating officer’s responsibility was limited to informing the accused of their right to be searched in the presence of a magistrate or gazetted officer as mandated by Section 50. There was no further requirement to seek consent before proceeding with the search, once this right was offered and the accused opted for it.
The Bench, in the process, disagreed with conflicting judgment in “Joginder Singh’s case” holding that a magistrate or gazetted officer was required to offer fresh consent before conducting the search. “The interpretation in Joginder Singh’s case, requiring fresh consent to be elicited from the accused by the magistrate or gazetted officer, would lead to an endless exercise... the accused may every time give his option to be searched by some other officer, rendering the process interminable.”
The court clarified that such an interpretation would complicate and hinder the search process. As such, fresh consent was not necessary once the accused had been duly informed of their rights under the law.
In its detailed judgment, the Bench reiterated the significance of adhering to the procedural safeguards under Section 50 by asserting: “The statutory provisions are cast in mandatory language, and strict compliance thereto is required by the investigating officer. Any departure there from, vitiates the search proceedings, and recoveries made during such searches would result in the acquittal of the accused.”
The Bench asserted that the investigating officer was required to adhere to the process of recording the consent memo under Section 50 for ensuring that the accused were aware of their rights. This procedural compliance was crucial to ensuring fairness and transparency in search operations. “Strict adherence to the procedure laid out in the NDPS Act for conducting personal searches is essential. Any deviation would render the recovery illegal and entitle the accused to an acquittal.”
