Accused’s refusal to search under NDPS Act will be vitiated if he misunderstands questions put to him: Delhi HC

A single-judge bench of Justice Anish Dayal observed that the requirements of Section 50 being mandatory in nature are in consonance with the right of an accused to know 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 or deficient manner,” the court said without mincing words.

The observations were made by the court while dismissing an appeal filed by Delhi Police challenging the order of a special judge acquitting a Spanish national on December 22.

The Spanish national was accused under Sections 22, 23, 28 and 29 of NDPS Act in an FIR registered in 2013. He was accused of indulging in procuring and exporting Ketamine to and from foreign countries through courier.

The special judge concluded that the prosecution has been able to establish 4 kg of Ketamine from the conscious possession of the accused. However, the recovery stands vitiated for non-compliance of mandatory procedural safeguards laid down under Section 50 of the NDPS Act.

“As a consequence thereof, the accused was acquitted of all the charges against him in the said case,” stated the court.

As per the judge, the accused, who was informed of his rights in English, couldn’t understand the scope of his legal rights in any other language than Spanish.

The Spanish national in his statement recorded under Section 313 of CrPC had denied knowing any other language than Spanish. Further, no independent witness was called when the legal rights were explained to him.

The special judge also noted that there was no effort discernible at any stage on the part of the empowered officer to secure the presence of any gazetted officer or a magistrate, who chose to rely upon the written refusal of the accused rendered in English.

Upholding the acquittal, the special judge observed that the accused was not totally familiar with English language and that the writing on the notice was clumsy and forced.

“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,” the court observed.

“It is evident from the facts and circumstances stated above and as noted in the impugned order that the accused did not have the opportunity of a translator or an interpreter at the stage when he was accosted and the search was conducted, and the scope of his legal rights were attempted to be explained to him under the framework of Section 50 of NDPS Act,” the court noted.

“In this case, it is apparent that the accused was not in a position to understand the importance of what was being communicated to him and its impact on his life. Therefore, this court finds no infirmity in the impugned order,” the court said.