NDPS Act| Procedural Mandate Of Search Conducted Should Be Complied With In Toto, Deficiency Would Vitiate It- Delhi HC

The Delhi High Court recently observed that the alleged refusal by the accused in getting a search conducted before a Gazetted Officer or a Magistrate under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 would be vitiated, if the accused misunderstood, misinterpreted, or even miscommunicated of the questions put to him.

The bench of Justice Anish Dayal observed that the requirements of Section 50 NDPS Act being mandatory, were in consonance with the right of the accused to know his legal rights and further said 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."

In this case, the petition was preferred seeking leave to appeal against the impugned judgment of the Special Judge, NDPS Act whereby it was concluded that though the prosecution was able to establish 4 kgs of Ketamine from the conscious possession of the accused, the recovery stood vitiated for non-compliance of mandatory procedural safeguards laid down in Section 50 of the Act. And, thus, the accused was acquitted of all the charges against him.

The foreign national, who was staying in a hotel in the national capital, indulged in procuring and export of ketamine, a psychotropic substance to foreign countries through courier. An FIR was registered in 2013 under Sections 22, 23, 28, and 29 of the NDPS Act.

APP Narinderjit Singh Bawa appeared for the State (petitioner) and Advocate Kaushal Jeet Kait appeared for the Respondent.

The Special Judge, while acquitting the accused, said that the accused being a Spanish national, was informed of his legal rights in English and that he would not have been able to understand the scope of his legal rights in any other language than Spanish.

Further, the Special Judge noted that the accused in his statement recorded under Section 313 CrPC, denied knowing any other language than Spanish. Moreover, his writing on the notice under Section 50 was clumsy and forced.

The Special Judge also noted that no effort was discernible at any stage on part of the empowered officer to secure the presence of any Gazetted Officer or a Magistrate and chose to rely upon the written refusal of the accused rendered in the English language. And, further acquitted the accused for non-compliance with the mandatory procedural safeguards under Section 50 of the NDPS Act.

Upholding the acquittal, the Court held that the compliance of compulsory requirements under Section 50 of the NDPS Act should have been complete and should have not been left in doubt and further observed that the accused was not totally familiar with the English language and agreed with the Special Judge with regard to his writing on the notice being clumsy and forced.

The Court further noted that the accused had requested a translator and even the recording of evidence before the Trial Court had been read over and explained to the accused through an interpreter.

The Court found no infirmity in the impugned order and said that the accused was not in a position to understand the importance of what was being communicated and what impact it would have on his life.

Accordingly, the petition was dismissed.

Cause Title- State v. Denis Jauregul Mendizabal 

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