'Personal Search' under NDPS Act: Resolving Judicial Dilemma in Interpreting Section 50 through Philosophical Discourse by Chirag Balyan & Anamika Sharma

Abstract

The scope of the term ‘personal search’ under Section 50 of the NDPS Act has been liberally and literally interpreted by the Supreme Court. Those having ‘restrictive approach’ which is also a commonly followed approach in such cases argues that the personal search means the only search of the person and doesn’t include the belongings like a bag, the vehicle of the accused and for their search, there is no requirement of the presence of a magistrate or a gazette officer. However, the wider connotation of the term includes within its ambit the items like bags, vehicle etc. Thus, there is a lack of judicial consensus on the adoption of an interpretative approach to construe Section 50 of the Act. Therefore, an attempt has been made in this paper to juxtapose and critique these approaches by reviewing judicial decisions. The paper argues that in understanding the law we need to first look into how the law has been shaped by different forces and their role in the contextualization of law. Therefore, the first part of the paper deals with the legal architectonic6 of the NDPS Act. It is based on the work of Prof. Alan Norrie recent work “Justice and the Slaughter Bench: Essays on Law's Broken Dialectic”. The second part goes to the specific issue that how the judiciary has liberally and literally interpreted Section 50. Next, critical analysis of these decisions has been made and in conclusion, the need for adopting the wider interpretation of term ‘personal search’ has been advocated in light of how section 50 seeks to balance competing interest and resolve the tension within the law. Moreover, it is argued that the wider interpretation provides the moral legitimacy to the State to use deterrent punishments even when the idea of a responsible legal subject is dissolved.