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2022 SCC OnLine Del 4549 : (2023) 297 DLT 554

In the High Court of Delhi at New Delhi

(BEFORE ANISH DAYAL, J.)

State … Petitioner;
Versus
Denis Jauregul Mendizabal … Respondent.
CRL.L.P. 241/2020
Decided on December 22, 2022, [Reserved on : 15th December,
2022]
Advocates who appeared in this case :
Mr. Narinderjit Singh Bawa, APP for the State with Mr. Shivesh
Kaushik, Advocate with SI Vishan Kumar, PS Crime Branch.
Mr. Kaushal Jeet Kait, Mr. Kritagya Kumar Kait and Mr. Rishav
Kashyap, Advocates.
The Judgment of the Court was delivered by
ANISH DAYAL, J.:— 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.
2. It is stated by the counsel for the respondent-accused that the
said accused is a foreign national and was arrested in 2013 and since
then, he remained in incarceration till his acquittal in 2019 and is
unable to go back to his home-country due to pendency of this petition.
A perusal of impugned order would show that the principal basis of
acquittal was lack of compliance of section 50 of NDPS Act by the
investigating authorities, which is extracted as under for reference:
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50. Conditions under which search of persons shall be

conducted.—
(1) When any officer duly authorised under section 42 is about to
search any person under the provisions of section 41, section
42 or section 43, he shall, if such person so requires, take such
person without unnecessary delay to the nearest Gazetted
Officer of any of the departments mentioned in section 42 or to
the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person
until he can bring him before the Gazetted Officer or the
Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such
person is brought shall, if he sees no reasonable ground for
search, forthwith discharge the person but otherwise shall
direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason
to believe that it is not possible to take the person to be
searched to the nearest Gazetted Officer or Magistrate without
the possibility of the person to be searched parting with
possession of any narcotic drug or psychotropic substance, or
controlled substance or article or document, he may, instead of
taking such person to the nearest Gazetted Officer or
Magistrate, proceed to search the person as provided under
section 100 of the Criminal Procedure Code, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer
shall record the reasons for such belief which necessitated such
search and within seventy-two hours send a copy thereof to his
immediate official superior.]
3. The Ld. Special Judge in the impugned judgment extracted the
law, including decisions of Hon'ble Supreme Court which hold that
section 50 of the Act is mandatory and not directory. The following
judgments are inter alia referred to in the impugned judgment : State
of Punjab v. Balbir Singh, (1994) 3 SCC 299; State of Himachal
Pradesh v. Prithi Chand, (1996) 2 SCC 37; State of Punjab v. Baldev
Singh, (1999) 6 SCC 172; Vijay Sinh Chandubha Jadeja v. State of
Gujarat, (2011) 1 SCC 609; Arif Khan @ Agha v. State of Uttrakhand
Crl.A. 273/2007 decided on 27th April, 2018 by the Hon'ble Supreme
Court; Dharmabir v. State Crl. 658/2017 decided on 13th November,
2018 by this Court; Gulzar Sheikh @ Sonu v. State Crl. 1235/2014
decided on 22nd February, 2019 by this Court.
4. 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
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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)
5. Ld. Special Judge has then narrated the fact that SI Sunil Jain
himself had made the deposition that before taking over the bag from
the accused, a cursory search of the person was carried out and nothing
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incriminating was recovered from the personal search. This is where

strict compliance of Section 50 of the Act arises. As per SI Sunil Jain,
the empowered officer, he had mentioned to the accused that it was his
legal right to conduct his search in presence of a Gazetted Officer or a
Magistrate by either calling such Magistrate/Gazetted Officer or by
taking him before them; if so desired. As per the IO, he had explained
the legal rights to the accused and handed over copy of notice under
Section 50 of the Act. The accused said that he did not want to be
searched in presence of a Gazetted Officer or a Magistrate.
6. 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. PW-5/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.
7. Learned counsel for the accused has also drawn attention of this
Court to the fact that it was recorded in impugned judgment that as
per deposition of PW-5, the manager of the hotel was joined in the
search however the said manager was not examined by the
prosecution. Further the alleged courier agent was also not traced,
neither the address nor the addressee were verified. Therefore, Ld.
Special Judge held that section 22 and 23 r/w 28 and 30 of the NDPS
Act remained unsubstantiated. It was further pointed out that as per
the record of this Court (as per order dated 12th February, 2014) it was
evident that the petitioner does not know English as this Court directed
that he be supplied with an official translator who knows Hindi, English
and Spanish and it was thus evident that he was not familiar with the
English language.
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8. The ld. APP relied upon the testimonies of PW-5 HC Mukesh and
PW-8 Insp. Sunil Jain, the IO, to contend that the IO had told the
petitioner in English that he could take search of the police officials in
the presence of a Gazetted Officer/Magistrate but he refused to exercise
his legal rights. Thereafter, PW-8 prepared notice under Section 50
NDPS Act (Ex. PW-5/A) and a copy thereof was given to the accused
and the IO obtained signatures of the accused on the original notice. As
per PW-5, the accused stated that he could read and write English and
had gone through the contents of the notice Ex. PW-5/A.
9. PW-8, the IO also stated that he had also informed the accused
that he could avail option of conducting the search in the presence of a
Gazetted Officer/Magistrate and he had told him meaning of the
expressions “in the presence of a Gazetted Officer/Magistrate” and then
prepared notice under Section 50 NDPS Act which he handed over to
the accused. As per PW-8, accused after understating his legal rights
said he did not want to be searched in presence of a Gazetted Officer.
10. The learned APP further relied upon a decision of this Court in
Innocent Uzoma v. State Crl. A. 139/2017 where this Court has
traversed the law relating to mandatory nature of Section 50 NDPS Act
including the decision cited above. This Court has concluded that while
the requirements of Section 50 NDPS Act are mandatory and not
directory and that issue is no longer res integra, the words “if such
person so requires” used in Section 50 (1) NDPS Act makes it amply
clear that the person to be searched would be taken before a Gazetted
Officer or a Magistrate, only if he so requires. In that decision, the Court
has focused on the aspect of the decision which has to be taken by the
accused in this regard.
11. Having appreciated the contentions of the parties and on a
perusal of record of this case, it is evident that the accused was not
totally familiar with the English language. His writing on the notice
under Section 50 NDPS Act is (as correctly noted by the ld. Trial Court)
was clumsy and forced. As also the accused had subsequently
requested for a translator before this Court, as noted above in the order
dated 12th February, 2014. Further, it is also noted that even the
recording of evidence before the ld. Trial Court has been read-over and
explained to the accused through an interpreter.
12. 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
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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 part
understanding/misunderstanding/mis-interpretation or even
miscommunication of the questions put to him and/or his response.
13. 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.
14. This petition is therefore dismissed.
15. Order be uploaded on website of this Court.
———
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