Applicability of Section 50 NDPS Act: Need for wider interpretation of the term personal search - The Daily Guardian
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Applicability of Section 50 NDPS Act: Need for wider interpretation of the term personal search

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The debate on wider interpretation of section 50 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter, referred to as NDPS Act) has once again come into highlights when the Supreme Court again dealt with this issue in the matter of Kallu Khan v. State of Rajasthan. In this case the accused and his vehicle were searched in the presence of S.H.O and in personal search no recovery was made by the police but a polythene bag containing brown substance resembling smack was found beneath the seat of the motorcycle. Considering, the facts of the case the Apex Court held that since, no recovery was made from the accused during personal search for which compliance of section 50 is mandatory instead the substance was recovered during the vehicle search which does not come under the ambit of personal search as is settled by judicial precedents therefore, compliance of section 50 of NDPS Act is not necessary in vehicle search.

The Narcotics Drugs and Psychotropic Substances Act, 1985 has created strict liability offences. Section 37 of the Act provides that NDPS cases are cognizable and non-bailable. If an individual allegedly commits any offence under the provisions of the Act, then he has to undergo incarceration till the end of a trial and chances of getting bail are meagre. This also indicates that if a person is falsely implicated in a case, then there is a serious curtailment on the due process protection. Section 50 of the act entitles the suspect with the right of getting searched in the presence of a magistrate or a gazetted officer. The term “personal search” has been interpreted differently by the various judicial pronouncements.

Section 50 of the NDPS Act, lays down the conditions under which the person is ought to be searched as per the Act. It safeguards the rights of individuals against the arbitrary actions of the law enforcement authorities meaning thereby that by the virtue of Section 50 of the Act an innocent person gets prevented from the false claims and charges of the law enforcement authorities.

The deterrent effect of this Act is to such extent that if any allegations are imposed on an individual under this Act then he cannot apply for Anticipatory Bail provided under section 438 of the Code of Criminal Procedure, 1973 in some States because some States vide amendments have prohibited an individual to move his anticipatory bail application if he is implicated under the provisions of NDPS Act for example under section 438(6)(ii) of The Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1977 a person is not entitled to anticipatory bail if allegations under the provisions of NDPS Act are levelled against him.

JUDICIAL INTERPRETATION OF SECTION 50 OF THE NDPS ACT

There are catena of judgments which have interpreted the term personal research provided under section 50 of the NDPS Act. One of the landmark judgment is State of Punjab v. Baldev Singh in this case the Apex Court while elaborating the relevance of Section 50 of the NDPS Act stated that Section 50 vests an individual with the right to get searched in the supervision of a magistrate or gazette officer considering the fact that severe consequences are faced by the accused under the provisions of the Act. However, the judgment was silent on the issue of consequence/validity of a seizure in case of a composite search where recovery was made only from the bag/receptacle/vehicle and not the person of the accused. The judgment used the specific line ending with the word “etc.” many subsequent judicial pronouncements used this sentence to hold that recovery from a bag does not attract section 50 of the Act without taking into account the fact that the word etc. cannot encompass a case of a composite search or where the person is in physical control of such bag or receptacle.

The Apex Court in State of Himachal Pradesh v. Pawan Kumar dealt with the similar issue of personal search under section 50 of the Act, the three judge bench went on to say that a carry bag or other similar object involves additional effort and energy, and hence, it was concluded by the Hon’ble Court that recovery made from any such article that require the additional effort and energy will not be included within the scope of personal search under section 50 of the NDPS Act.

In Dilip v. State of Madhya Pradesh, the recovery of 5kg 890 grams of opium was made from scooter and the riders were arrested on account of recovery. The learned Sessions Court acquitted them owing to the non-compliance of section 50 of the NDPS Act, this decision was then overturned by the Madhya Pradesh High Court. The accused person then appealed to Supreme Court against the decision of the Madhya Pradesh High Court, the Supreme Court then relying on the observation laid down in State of Punjab v. Baldev Singh ruled that compliance of section 50 of the NDPS should have been done and therefore, the decision of the Madhya Pradesh High Court was overturned.

The Apex Court in the matter of Vijaysinh Chandubha Jadeja v. State of Gujarat, the constitutional bench of the Supreme Court held that the compliance of section 50 of the Act is mandatory and failure to do so would make the recovery suspicious, therefore, the conviction was invalidated solely on the ground of non-compliance of the section 50 of the NDPS Act.

In State of Rajasthan v. Parmanand & Anr. a combined communication was made to the accused, informing them about the legal right of being searched in the presence of magistrate or gazette officer. The second person gave his consent in writing to this the Hon’ble Apex Court pointed out that section 50 of the Act serves the useful purpose. Communication to the accused is required to be made individually since, majority of the offences are strictly punishable under the NDPS act. In this case the interpretation of section 50 was made applicable in case the unlawful contraband was recovered from the accused’s luggage and non-compliance with the section would invalidate the trial.

In S.K. Raju v. State of West Bengal the accused was searched in the presence of gazette officer and charas was recovered from the jute bag carried by the accused person. The bench on considering the judgment laid down in Parmanand and Dilip cases concluded that the search not only covered the bag but also the personal search of the accused person, therefore, Section 50 would be triggered and applied. It was held since both the search was done in the presence of the gazetted officer therefore, section 50 of the Act was followed and hence, the three judge bench rejected the appeal.

CONCLUDING REMARKS

In the light of the discussion made hereinabove, it is evident that there has been a lot of back and forth on the issue of applicability of section 50 of the NDPS Act especially in cases of composite search. But one thing that is very important to note is that judgment of Baldev Singh has raised fundamental issue about the interpretation of the phrase “vehicle, etc.” in the subsequent decisions. In the author’s opinion section 50 of the Act should not be interpreted restrictively, rather the scope of interpretation of the section should be widened considering its avowed object of ensuring sanctity of search and seizure proceedings. The said section safeguards the right of an individual to be protected against the arbitrary actions of the law enforcement agencies which is guaranteed under Article 21 of the Indian Constitution therefore, the question which the term personal search raises should be answered authoritatively and the scope of personal search should be widened so as to prevent the individual from being the victim of abuse of law by the authorities. Till date there is no clear interpretation of the term personal search rather the entire jurisprudence of the said section is based on the phrase etc. used in the judgment of Baldev Singh.

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‘The crime committed has to be considered in the remission or premature policy of the state’

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The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission which is applicable in the State and the pre­mature release in terms of the policy

The Court noted while hearing the writ petition that in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release, as the case may be, in the instance case. under Section 432(7) CrPC, there cannot be a concurrent jurisdiction of two State Governments, can be either the Central or the State Government of the appropriate government.

in terms of Section 432(7) CrPC, the trial was to be concluded in the same State and ordinarily in the State of Gujrat the crime in the instant case was admittedly committed. by an order 06.08.2004., the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighbouring State i.e., the State of Maharashtra, observed by the bench of Apex Court.

As mentioned by the petitioner in the plea that by judgment impugned dated 17.07.2019., the application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat and His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. under Sections 433 and 433A of the Code of Criminal Procedure, 1973, the petition was filled by the petitioner for premature release further the petitioner stated that that he had undergone under the custody of more than 15 years 4 months.

Section 302, 376(2) (e) (g) and reading it with Section 149 IPC, Shah was found guilty for the offence, the offence committed by him in the State of Gujrat.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

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Seeking reduction of qualifying the percentile for admission in ayurveda course: A plea in Supreme Court

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The Supreme Court in the Case Amit Kumar v UOI & Or’s observed in Ayurveda course in view of large number of vacancies and for seeking reduction of qualifying percentile for admission, an ayurveda aspirant who appeared in NEET 2021 has approached the Court.

the court had observed that lowering the minimum marks and reducing the percentile for admission to first year BDS Course would not amount to lowing the standards of Education and further the Court directed to lower the percentile mark by 10 percentiles for admission in first year of BDS Course for academic year 2020-2021, with regards to substantive the contentions made by the petitioner by referring the judgement passed in the case in Harshit Agarwal & Or’s v Union of India.

the percentile may also be reduced for Ayurveda programme enabling the Petitioner to take admissions then If percentile is being reduced/considered for reduction for BDS course was further stated by the petitioner in the plea, while referring to an order dated 04.29.2022. Thereafter the top Court had asked Centre to consider lowering the percentile for BDS Courses.

Seeking the Centre’s response in a plea by filing a counter affidavit, noted by the Top Court specifying the above-mentioned information:

after deducting the admission granted for MBBS Courses (BDS Courses), the total number of Candidates.

in All India Quota and State Quota, the totals number of vacant seats.

in government colleges on one hand & private/deemed colleges on the other hand, the number of seats which are remaining.

the petition was filed through AOR Neeraj Shekhar and for the petitioner Advocate Shivam Singh appeared.

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Bank case rejected by Supreme Court against farmer

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The Supreme Court in the case Bank of Maharashtra & Or’s v Mohanlal Patidar observed an order given by the High Courts of directing the bank the OTS proposal given by a farmer who had availed a loan from the bank, the court further pulled up the Bank of Maharashtra for challenging the order.

The Bank shall complete remaining formalities and provide all consequential benefits flowing therefrom to the petitioners, the court further stated that it is needless to emphasize The OTS proposal given by the petitioners in both the cases shall be accepted by the Bank and ‘sanction letters’ be issued forthwith, the court allowed the petitioner plea.

The petitioner not only promptly challenged the said order, it is noteworthy that petitioner never acceded to the unilateral decision dated 25th August 2021 and even otherwise the letter dated 25th August 2021 is held to be illegal by us, clause-7 of policy cannot take away the fruits of OTS benefits, within two months from the date of issuance of order dated 22th September 2021, the petitioner filled the instant petition and further the court directed we are unable to give stamp of approval to the impugned orders and action of the Bank, observed by the bench comprising of Justice Sujoy Paul and the justice Dwarka Dhish Bansal while setting aside the impugned orders of the bank.

In an order dated 03.09.2021 it was stated and it showed that the petitioner was required to pay minimum 10% of the OTS amount within stipulated time and that he had deposited Rs.35,00,000/- out of Rs.36,50,000/- within the stipulated time, it was argued before the court by the counsel.

As full and final settlement of the dues, he will be required to deposit Rs.50.50 lakhs as he was informed by the Asset Recovery Branch of the Bank.

Whole law comes into place when a matter of farmers come as the down payment were also accepted and it was further stated by the bench in an oral remark You don’t file cases against the ones who loot 1000s of crores.

The respondent had obtained a loan and intended to pay it in terms of a One Time Settlement which was quantified as Rs 3650000/-. in furtherance thereof the respondent had deposited Rs 35,00,000 with the bank, in the above-mentioned matter.

The bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme, contended by the counsel further the counsel stated that the bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme.

The bench comprising of Justice DY Chandrachud and the justice Surya Kant observed and remarked while dismissing the plea assailing Madhya Pradesh High Court’s order dated 02.21.2022 Such a litigation in Supreme Court will spoil the families of farmers financially, Go after bigger fish.

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In Company Law the duomatic principle is applicable even in Indian context: Supreme Court

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The Supreme Court in the case Mahima Datla vs Renuka Datla observed and stated that it will be applicable even in the Indian context, if the same is consented by all members ‘strict adherence to a statutory requirement may be dispensed with if it is demonstrated in the Duomatic Principle.

It was therefore held that G.V. Rao never seized to be a Director of the Company in view of the acquiescence by Dr. Datla and he had withdrawn his resignation prior to its acceptance, the resignation dated 6th April 2013 was clearly not accepted by Mr. G.V. Rao, as it is clearly being showed by her conduct and there is overwhelming evidence to show that Dr. Datla had accepted Mr. G.V. Rao back into the Board, in this case the court noted.

anything the members of a company can do by formal resolution in a general meeting, they can also do informally, if all of them assent to it, as stated briefly in the Duomatic Principle as derived from the decision In Re: Duomatic Ltd further the court noted the case of Salmon v. Salmon Co. Ltd, as it was held in that case if a company is bound in a matter intra vires by the unanimous agreement of its members. As In Re the court noted that the Duomatic Principle as derived from the decision.

Mr. G.V. Rao continued to carry on as the Director in view of the acquiescence by Dr. Renuka Datla? And weather can the Duomatic Principle can be invoked to state that the issue of resignation of the Director had lapsed, as one of the issues being raise in the appeal filled before the Apex Court.

The High Court of Judicature at Hyderabad for the State of Telangana and Andhra Pradesh allowed the Company appeal filed by Dr. Datla and the court further issued the various directions as this petition was dismiised by the Board as only to ensure Dr. Datla doesn’t have sufficient shareholding to maintain a petition under Sections 397 and 398 of the Companies Act, 1950, as it was being approached by Dr. Datla to the Company Law Board complaining that the holding of board meetings was illegal as an attempt was made to increase the number of members in the Company.

there is no protest by Dr. Renuka Datla regarding attendance of Mr. G.V. Rao. Dr. Renuka Datla also participated in the Board Meetings dated 22nd August 2013 and 25th September 2013, without any protest for continuation of Mr. G.V. Rao as its Director as in the resolution passed. The latter which was placed in the meeting of the Board on 9th April 2013, seeking withdrawal of his resignation as on 6th April 2013, G.V Rao submitted his resignation letter and further which it was later withdrawn by G.V Rao on 9th April 2013. As on 20th March 2013 the late Dr. Vijay Kumar Datla as the directors of the Company were Biological E. Ltd are Dr. Renuka Datla and one G.V Rao.

The bench comprising of Justice Vineet Saran and the justice JK Maheshwari clarified that the said principle is only applicable in those cases wherein bona fide transactions are involved and that ‘Fraud’ is a clear exception.

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SUPREME COURT ASKS WEST BENGAL GOVERNMENT TO LOOK INTO REPORT OF OLDER WOMEN PUSHED INTO PROSTITUTION AFTER COVID IN SOUTH 24 PARGANAS

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The Supreme Court in the case Budhadev Karmaskar v. State of West Bengal and Or’s observed that women of older age groups are being forced into prostitution after the onset of the COVID-19 pandemic and further the court ordered the State of West Bengal to look into the issue that in South 24 Parganas District of West Bengal.

The traffickers who were finding it difficult to get hold of young women due to the lockdown had shifted focus and by taking advantage of their acute poverty which was being worsened by the pandemic engaged older women from West Bengal’s costa regions in prostitution. An article was referred by the Amicus, The Article covered the plight of the women in the Sunderban Delta region of West Bengal and stated and noted that the pandemic coupled with climate change is now pushing older women and even the grandmothers into the trade, the Article was published on the website of The Print.

The pandemic that has stretched on for more than two years, it was said by the activists working in the area and this made them vulnerable to traffickers who found it difficult to procure young women and minor girls and shifted focus to middle aged women from West Bengal’s coastal regions due to their abject poverty.

No precautionary measure are taken by the State Government though the State Government is aware it further request the State Government to look upon the issue as due to the pandemic In South 24 Parganas (West Bengal), aged women are being used for this purpose for their poverty.

The Bench asked the Counsel representing the State of West Bengal to look into this issue and respond when the matter is put up for hearing on 05.17.2022., At the request of the Amicus the bench directed.

The Bench Comprising of Justice L. Nageswara Rao and the justice B.R. Gavai observed that the older women in South 24 Parganas District of West Bengal, from poor families, especially after the onset of the pandemic, are being pushed into prostitution and the Amicus further alleged though the State Government aware of the same but the State Government have not taken any precautionary measures. The Bench noted while hearing a plea seeking various benefits for sex workers across the country, Amicus Curaie, Mr. Piyush K. Roy apprised it that, as per news reports.

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Supreme Court sets aside POCSO conviction; TN custom is of marriage of girl with maternal uncle

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The Supreme Court in the case K Dhandapani vs State observed while hearing a plea that after noticing that he had married the prosecutrix and had two children, a man accused in a POCSO case, the court set aside the conviction.

The Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix. Thereafter the Court said that it has been informed of the custom in Tamil Nādu of the marriage of a girl with the maternal uncle. if the accused-appellant does not take proper care of the prosecutrix, she or the State on behalf of the prosecutrix can move for modification of this Order, further being clarified by the Court. The bench is of the considered view that the conviction and sentence of the appellant who is maternal uncle of the prosecutrix deserves to be set aside in view of the subsequent events that have been brought to the notice of this Court, while considering the facts and circumstances of the Case.

The Court observed, while allowing the appeal that the marriage between the accused and the prosecutrix is not legal and it was submitted by the state in an appeal that the prosecutrix was aged 14 years on the date of the offence and gave birth to the first child when she was 15 years and the second child was born when she was 17 years.

the prosecutrix stated that she has two children and they are being taken care of by the appellant and she is leading a happy married life, the statement given by her was being noticed by the Court. the allegations submitted by the

the appellant against him was that he had physical relations with the prosecutrix on the promise of marrying her and that he married the prosecutrix and they have two children, submitted before the Apex Court.

Section 6 of Protection of Child from Sexual Offences (POCSO) Act, 2012 and reading with the Sections 5(j)(ii) read with Section 6, 5(I) read with Section 6 and 5(n). the maternal uncle of the prosecutrix who is the accused in the said case was being convicted under the said sections and was sentenced to undergo rigorous imprisonment for a period of 10 years by the Madras High Court.

The Bench comprising of Justice L Nageswara Rao and the justice B R Gavai observed while rejecting the objection raised by the State which contended that the marriage might be only for the purpose of escaping punishment that the court have been informed about the custom in Tamil Nādu of the marriage of a girl with the maternal uncle and on the ground of reality and to disturb the happy family life of the appellant and the prosecutrix, The Court cannot shut its eyes.

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