The law on search in drug cases

Recently, while overturning a judgment by the Delhi High Court in a case involving possession of illegal drugs under the Narcotic Drugs and Psychotropic Substances Act (NDPS), 1985, the Supreme Court clarified that only an accused has the right to be searched in front of an  independent gazetted officer as per the provisions of the Act. 

In this Weekly, let’s discuss under what circumstances can someone accused of an offence under the NDPS Act be searched. 

What offences does the NDPS Act punish?

In India, possession, use, manufacture and trafficking of illegal drugs and psychotropic substances like cannabis, cocaine, morphine, diacetyl-morphine is a punishable offence. The NDPS Act punishes these acts with rigorous punishment extending up to ten years and a fine, depending on the quantity of the illegal drug in question. 

What is the procedure for search and arrest in the case of an NDPS offence?

 The police and designated officers from the Narcotics Control Bureau can arrest and search anyone suspected to have committed an offence under the NDPS Act, without a warrant. 

Section 50 of the NDPS Act lays down that a person being searched has the right to have the search conducted before the “nearest” gazetted officer, an officer or public servant who is appointed by the Government or any of its branches. The Act specifies that the accused must clearly understand this right before any body search is conducted. This is in line with the assumption in Indian laws that everyone is innocent unless they are proven guilty before a court of law. This holds true even for offences under the NDPS Act.  

In case of any unlawful or unnecessary arrest, search or seizure by the police, citizens can take recourse to legal remedies discussed here. 

What did the Supreme Court say in connection to the search procedure in case of an NDPS offence?

In the current case, the accused was searched in front of the ACP who was a part of the raiding team, in the ACP’s capacity as a gazetted officer. The Delhi High Court granted the accused bail, observing that the search was illegal. The court said that the ‘nearest’ mentioned in section 50 of the Act should not be read as “any” and so the ACP should not have been treated as the gazetted officer in this case. 

The High Court’s order was overturned by the Supreme Court. It said that there need not be any difference between ‘nearest’ or ‘any’, when it comes to approaching a gazetted officer. However, it did clarify that any officer could not mean the same officer who is a part of the raiding or investigating team. This will defeat the intent of the Act to ensure independence and neutrality of the search process. The Supreme Court dismissed the bail order and decided to not comment on the merit of the case beyond clarifying who is an appropriate gazetted officer in the case of search for NDPS cases. The Supreme Court stated that the accused can apply for bail later, if there are any changes in the circumstances of his arrest. 

To know more about arrest in an NDPS offence, read our explainer here.