 We have always seen John Ralph speaking in the sessions and today we have his son Ralph John to take the deeper insights again into the criminal jurisprudence and NDPS after we did a session some 10 days ago, we received that we should also discuss the constitutional time judgment. In the Vijay Singh Shankar Dubey Jadeja, the facets of section 50 of the NDPS and we understand that today being a weekend, we will not take much time because it only speaks that persons are interested to have the insights of the legal knowledge over and above. They are going around with the family on a Sunday weekend. So I request Ralph, John who has been guiding enough to accept our invites or do you Ralph? Thank you sir. So today the topic is the constitution bench judgment in Vijay Singh Chandruba Jadeja and section 50 of the NDPS Act. Now I'll start with reading out the first part of section 50 of the NDPS Act which I'll be dealing with in this talk. Now what is section 50 of the NDPS Act? Now section 50 reads conditions under which search of persons shall be conducted. When any officer duly authorized under section 42 is about to search any person under the provisions of section 41, 42 or 43, he shall, if such person so requires, take such person without unnecessary delay to nearest guess-added officer or any of the departments mentioned in section 42 or to the nearest magistrate. If such a requisition is made, the officer may detain the person until he can bring him before the guess-added officer or the magistrate referred to in subsection 1. Now I'm going to deal with subsections 1, 2 and 3 throughout this talk. So I'll stop here for a moment and I'll continue with the section at the later part of this talk. Now before the enactment of the NDPS Act of 1985, we had the dangerous drugs act of 1930. Now it had similar provisions as that of the present act but the main difference is about the right of a person during body search. Now in the earlier act, section 24 empowered an officer mentioned in the act to detain and search any person whom he has reason to believe to have committed an offense punishable under the act. And if such person has any dangerous drug in his possession and such possession appears to him to be unlawful, he can proceed to arrest him. Now that was a position before the enactment of 1985 act in the dangerous drugs act of 1930. Now after half a century when the new act was drafted, the parliament thought it fit to incorporate a right against vexatious search and false implications and thus incorporated that the search of the person may be held only in the presence of a magistrate or a guessable officer and that is how we have section 50 of the NDPS act as we have now. The incorporation of such right under section 50 can remotely be connected with the fourth amendment of the U.S. Constitution as well. That gives a right to the people to be secure in their person's houses, property, etc against unreasonable searches and seizures without a probable cause. Now section 50 may have drawn its cue from the fourth amendment of the U.S. Constitution. Now section 50 acts as a safeguard against vexatious search. The safeguard of protection to be searched in the presence of a guessable officer or a magistrate has been incorporated under section 50 of the act so as to ensure that persons are only searched with a good cause and also with a view to maintaining veracity of the evidence derived from such search. Now the rationale is that the search before a guessable officer or a magistrate would impart much more authenticity and printworthiness to the search and seizure proceedings. At the same time it would also strengthen the prosecution case because a person is searched before an authority, an independent authority. Now so you have a right under, you have a statute to write under section 50. Why should a right be communicated? What is the relevancy of the communication of that threat? Now the statute itself provides for a right and why should that right be made aware to a suspect or a person that is detained? Now this question was answered in the celebrated judgment of Miranda versus Arizona of the of the Supreme Court of the United States. The fifth amendment of the U.S. Constitution gives a suspect or an accused the right to remain silent. Now in the facts of Miranda versus Arizona, the arrested person, the arrestee, Ernesto Miranda, he was not apprised of his right to remain silent during questioning and later he signed a confession statement within hours of questioning. Now when the matter came up before the Supreme Court of the United States, the court held that the warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege but also of the consequences of foregoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. That was a view expressed by the Supreme Court of the United States. Now same thing, when we come to the Indian scenario, we have the just, fair and reasonable principle as enunciated in Manega Gandhi's case because after Manega Gandhi, it is no longer permissible to argue that the right to personal liberty can be temporarily, can even be temporarily restricted by a procedure that is not reasonable, fair and just. And when a statute itself provides for a just procedure, it is therefore necessary to inform the suspect of his right to be searched in the presence of a guess-added officer or a magistrate. Now without notifying the suspect that he has a right under Section 50, it would not be conducted in accordance with the reasonable, fair and just procedure. Now in my opinion, the right should not just end with Section 50 clause 1. The suspect should also be informed under sub clause 3 that the guess-added officer or the magistrate before whom any person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct the search may be. That is what is contained in sub clause 3 of Section 50. Now only when sub clause, the right under sub clause 3 is also communicated or informed to the suspect or a detainee, only then he could make a decision to be searched in their presence or not. Now suppose if a person is not having any contraband in his body, only if he is communicated that the person before whom you are brought has also the power to discharge you, only then he would opt for such a search before a magistrate or a guess-added officer. So when the right under Section 50 is communicated to a suspect, he should be informed of both his right under Section 50 sub clause 1 and also sub clause 3 for him to make an intelligent and informed exercise of the privilege. Now I have only seen one judgment on that point and that is by the Rajasthan High Court in Ambalal versus State of Rajasthan. The citation is 2016 criminal law journal 4530. That is the only judgment I have seen about the right under Section 50 clause 3 where you should also be informed that the magistrate or a guess-added officer also has the power to discharge you. That right also should have to be communicated to the suspect. Now this is also because fighting a person to be in possession of articles which are illicit under the provisions of the Act has a consequence of requiring him to prove that he was not in contravention of its provisions and it renders him liable to severe punishment also coupled with the presumption under Section 54 of the Act. It is therefore that the Act affords a person to be searched a safeguard under Section 50 clause 1 and clause 3. Now it was in this background the Constitution Bench in Baldev Singh in 1999 was delivered. Now when we come to Vijay Singh Chanduba Jadeja versus State of Gujarat the question that was placed before the Constitution Bench was that whether substantial compliance of Section 50 was enough. Now there were conflicting judgments on that part. The issue was regarding whether the concerned police officer must inform the suspect of the existence of his legal rights in that regard before conducting the search or merely required to ask the suspect whether he would like to be produced before the magistrate or a guess-added officer for the purpose of search. Now there were three judgments that was mentioned in Vijay Singh Chanduba Jadeja. Now on one hand we had Joseph Fernandez versus State of Goa and Prabhashankar Dubey versus State of Madhya Pradesh on one side and Krishna Kanwar versus State of Rajasthan on the other side. Now all three judgments were considered in Jadeja's judgment in 2010. Now in Joseph Fernandez if you want the citation of Joseph Fernandez it is 2001 SCC 707. It was overruled in Jadeja. So in Joseph Fernandez the suspect was told that if he wished he could be searched in the presence of a guess-added officer or a magistrate to which the suspect did not exercise his right. Now when the matter came up before the Supreme Court the court held that the searching officer has informed him that if you wish you may be searched in the presence of a guess-added officer or a magistrate. Now the court held this was substantial compliance with the requirement of section 15 and did not agree with the condition that there was no compliance with the mandatory portion contained in section 50 of the act. Now similarly in Prabhashankar Dubey it's a 2004 to SCC 56. The condition raised was that mere asking the accused as to whether they would like to be searched by the guess-added officer or the magistrate is not sufficient compliance of the requirements under section 50 of the act. By merely asking them this was also convention raised by merely asking them what is done is seeking the opinion and not making them aware of their right. But the court reiterated the judgment in Joseph Fernandez and held that the above mention is what was held by the court to be informed of the right which means essentially means that substantial compliance was enough. A similar view was taken in that case too. But later in Krishna Kanmar the court held that the suspect has to be informed the right under section 15 in view of the judgment in Baldev Singh the Constitution bench in Baldev Singh. So there were conflicting opinions and that is how the Supreme Court constituted the Constitution bench and the question was answered. Now answering that question the apex court held that the substantial compliance of section 50 is not enough and the compliance of section 50 is mandatory and requires strict compliance. Failure to comply with the provisions would render the recovery of the illicit article suspicious and we see the conviction of the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during search. But that was the answer the Supreme Court laid down answering the question of whether substantial compliance is enough or sit compliance should be there. Now in that judgment the Supreme Court also considered the insertions of subsections 5 and subsections 6 of section 50 which were inserted in the act by the amending act of 2001 and observed that it diluted strict procedure under section 50 only in circumstances mentioned therein. Now let us see what are the circumstances or as mentioned in subclass 5 and subclass 6 of section 15. The subclass 5 reads when an officer duly authorized under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest guested officer or magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance or control substance or article or document. He may instead of taking such person to the nearest guested officer or magistrate proceed to search the person as provided under section 100 of the CRPC. After search is conducted under subsection 5, the officer shall record the reasons for such belief which necessitated such search and within 72 hours send a copy thereof to his immediate official superior. Now the insertions in section 50 under clause 5 and clause 6 were challenged in Karnail Singh was state of Haryana and Supreme Court upheld the insertions and also took a view that even though the rigor or the mandate under section 50 clause 1 is diluted, it provides safeguards by way of clause 6. So even though it diluted strict procedure under section 50, there are circumstances mentioned therein and that too being subject to additional protection provided by the amendment and held that such insertion does not annihilate the mandate of section 51 to inform the suspect of his right to be taken before a guested officer or a magistrate. So even if a police officer is using subsection 5 and subclass 5 and subclass 6, he still have to inform the suspect or the detainee of his right under section 50 clause 1. Now in Chanduba Jadajah's decision, there was also another point that was considered even though it was not a question that was posed before the court that how should be the right informed to the detainee or the suspect. Now in the court answered that mandatory informing of the suspect of rights under section 50 may be made orally or in writing. So it could be both ways. So that was also laid down in Vijay Singh Chanduba Jadajah's case. Now taking cue from Jadajah's decision in Navdeep Singh versus state of Haryana, 2013 to SEC 584, the court held that the the provisions not prescribed any set format for notice regarding informing suspecting persons of right under section 15. Now the essence is to a price accused of his legal right of being searched either by a guested officer or a magistrate. So it could be both made orally or in writing. So the conclusion in Jadajah is about the strict compliance that every empowered officer searching a person should be followed. What is to be followed and it requires strict compliance. Now when a lady is being searched under section 15, what is the procedure to be adopted? In sub-close four of section 50, you'll find no female shall be searched by anyone except a female. Now this was also considered in an earlier judgment of the Supreme Court in Baldev Singh, the constitution bench I had mentioned earlier. Now while conducting the search and seizure, in addition to the safeguards provided under the CRPC, the safeguards provided under the NDPs Act are also required to be followed. And section 50 close four of the NDPs Act lays down that no female shall be searched by anyone except a female. The court also held that the provisions is similar to the one contained in section 52 of the CRPC of the earlier court and section 51 close two of the CRPC of 1973, relating to search of females. So also the law as to that point is also settled and the search of a female has to be conducted by a female. Now let us see how a proper communication should be made to a detained person or a suspect under section 50. The communication of this right has to be clear, unambiguous and individual and also in a language comfortable for the suspect. Now the law settled in state of Rajasthan versus Paramaland that joint communication is also not possible and the court later went on to hold that the communication has to be clear, unambiguous and individual. Now how is the right to be communicated? Now first the suspect or the detainee has to be apprised that under section 50 of the NDPs Act you have a right to be taken to the nearest magistrate or a guess-added officer and your body search would be made in their presence. That is how the right should be communicated in view of the judgments in Baldev Singh and in Vijay Singh Chandu Bajjadej's case. He has also to be apprised of his right under section 50 clause 3 that if such magistrate or a guess-added officer finds that no reasonable grounds to search the suspect if they don't find any reasonable ground to search the suspect they have the power to discharge the suspect forthwith that right also should have to be communicated to a person only then he can exercise an intelligent and informed opinion he could form an intelligent and informed opinion. Now we have also seen in many cases the detecting officer giving a third option to the suspect or the detainee that either you can offer a magistrate or a guess-added officer or you can offer or I can search you instead of taking you to the nearest magistrate or a guess-added officer. Now this is also a frowned upon by the supreme court and in state of Rajasthan versus Ramchandra in 2005 5 SCC 151 the court held that the third option of the detecting officer offering himself a search is not compliance so that that option should not be given and if it is given it is a violative and the any search in in persons of the body search would be appreciated. Now it is also important to look to see what what is a body of a person now there were conflicting judgments of the supreme court as to if if the seizure is not made from the body of a person say a bag or a vehicle should section 50 be uh complied with. Now in one of the judgments in SK Raju versus state of West Bengal the supreme court held that even if the if the inquiry even if the recovery of the of the illicit article was from a bag or another please say example for the vehicle or the compartment of a scooter if body search is made it has to be complied section 50 has to be complied and if section 50 is not complied then the search the the entire search would be appreciated that was a view taken in SK Raju versus state of West Bengal. Now what is a body of a person this was explained by the supreme court in state of Himajal Pradesh versus Baban Kumar in 2005 4 SCC 350 the court held that a person means not a naked or a nude body of a human being but the manner in which a normal human being will move about in a civilized society so that that is the definition of a body or a person under section 50 of the NDPS Act as held by the supreme court. Now I had just mentioned that section 50 does not apply to bags but in in one of the judgments in SK Raju the court held that even if the body search is conducted even if the recovery is from another place if the body search is conducted section 50 has to be complied but later the supreme court itself has clarified by three or four judgments delivered in 2019 2020 that the search of the vehicle and recovery of contraband pursuant the two having stood proved merely because those non-compliance of section 50 as far as personal search was concerned no benefit can be extended so as to invalidate the effect of recovery from the search of the vehicle. Now this was in state of Punjab versus Baljinder Singh AR 2019 SC 5298 and also later it was relied on in Tan Kunwar versus state of Haryana 2025 SCC 260 and Varinder Kumar versus state of Himajal Pradesh 2023 SCC 321. Now this this conclusion was reached on the basis of the judgment in Baljinder Singh in 1999 where the in in the conclusions laid down by the constitution pens conclusion number three was to the effect that if section 50 is violated then any recovery in persons or any recovery from the body in persons of that search would be appreciated not the entire trial but if there are other evidences or other seizure then that seizure would not be appreciated by non-compliance of section 50. So taking cue from the judgment in Baljinder Singh the Supreme Court has delivered three judgments these three are the latest judgments which says that section 50 does not have to be complied if the seizure is from not your body. Now so that is what I intend to talk my talk is more or less finished so if if you have any doubts I'd be happy to answer it hello is it audible yes yes sir I cannot see you though John yes sir can you hear me yeah you can hear me yes yes yeah yeah I'll just check out the suit one has shared that finally share these judgments so you can share those judgments on to me on the whatsapp I will share it in the whatsapp group of Pionglau. Yes sir I'll share it so we have said what do you think so what do you think about the police searching a person and illegally putting some drugs on them and then making an arrest see this is exactly why section 50 was incorporated in the act but of course you cannot so it was essentially to prevent any vexation search and false implications that's that you have to be searched in the presence of a magistrate or an escorted officer but in most of the cases if you're you know leaving apart the theory in most of the cases we do not find that the person is actually apprised of his rights and he's taken to a magistrate or an escorted officer now in paper in paper we would find that such a right is complied but when we you know like talk to the accused we see that no such rights were apprised or communicated to them but there is one judgment in NCB versus Subdev Rajsodi where the Supreme Court held that the right does not end there and when the right is communicated but you're actually taken to a magistrate and not a escorted officer because a magistrate taking a person to a magistrate would instill more confidence in the suspect and the recovery if any thereof so there is one judgment I'll also share the citation with sir but yes regarding false implications I don't think there is anything that we could do but there are post-examination where you think that you have been falsely implicated so you're not clear I can't hear you but the question wasn't clear I say that this is the art of cross examination where you can damage bring the things forward that you have been falsely implicated yes yes but there are many ways you could do that especially you can you could use the mobile tower locations you could use a general diary entries to show that no such person or a guest attorney officer was not present in the scene so there are many ways you can show that so just share your ideas what can be done for a young lawyer they can understand what can be done to show that he has been falsely implicated yes I'll share that with you we are doing screen sharing can I send it to you because I would allow you the screen sharing or you can just speak otherwise yeah not just try the screen sharing no other other questions then no there's a that is the difference between section 47 and 50 of the act 47 and 50 section 57 and 47 and 50 was 47 is about the duty to certain officers to give information of illegal cultivation now is that what what the question is about that's a self-examination section so thank you Ralph for sharing your knowledge and those who have connected for us with the for the first time they can join us on the youtube channel of beyond law clc or on the whatsapp group who have more insights thank you thank you everyone