The five judges were faced with these issues: the rising level of minimum punishments; the maximum punishment of a death sentence with no choice to judge between life imprisonment and death; the presumption of guilt against an accused till rebutted by him aboutunlawful possession of drugs beyond the quantities mentioned and the reversal of normal bail procedures against a small right of the arrested person in Section 50 of the NDPS Act. This provided that if the arrested person requests that he or she should be searched in the presence of a gazetted officer or a magistrate then the officer has to comply.

But the small right for the protection of the innocent citizen became a source of subverting the entire fight against the narcotics mafia. The accused faced with the presumptions against him and the minimum sentences under the Act would be terrified and willing to pay. What better way to help the accused and his mafia? The court would then immediately discharge the accused as there was a violation of the mandatory right for a search on which a conviction for unlawful possession of the prohibited drug is based. Stringent provision had resulted only in criminals going scotfree and the enforcement machinery making money.

Various benches of the Supreme Court triedto meet the situation. Some tried to hold that the small right in Section 50 of the Act was not mandatory but directory. Others held that even if the search was illegal, being in violation of Section 50, still the evidence recovered from the search could be used. For this use was made of the logic of the Supreme Court's judgment in Pooran Mal's case under the Income Tax Act provisions of search and seizure.

It was held that the legal test of evidence is the relevance of the material seized in a search and not the illegality of the search. But another Supreme Court bench felt to the contrary by pointing out that while under the Income Tax Act the possession of the books and goods seized is not by itself an offence, under the ND-PS Act, the possession of the seized drugs is the offence. The conflict in the apex court's own judgments set the debate for human rights vs social security.

The ministries did nothing to resolve this. Now the constitution bench headed by the Chief Justice of India has held that aperson before being searched by an empowered officer has a right to be informed of his right to be searched before a gazetted officer or a magistrate, that this information need not necessarily be in writing, that a search without such information is illegal and so does not result in the presumption of an offence against the person on the ground of unlawful possession. But the five-judge bench has put an end to the money making subversion of the Act by holding that persons arrested by the ND-PS officers cannot simply walk away free by showing non-compliance of Section 50.

The criminal trial must go on wherein the prosecution has to lead evidence of compliance with Section 50. If the evidence is not forthcoming, at the end of the trial there cannot be any conviction or sentence. In such a case the judges have indicated the duty of the Union Ministries of Finance and Home by stating that the failure of the empowered officers must be viewed seriously by the higher authorities. The apex court, after strikingthis fine balance between human rights and social security, has put the onus on the government. The competent authorities under the NDPS Act and anti-smuggling laws like COFEPOSA, SAFEMA, Customs and FERA, all administered by the Union Finance Ministry, today simply do not do their job. Will the IAS lobby holding sway over this crucial Ministry respond to the concern of the apex court or will it simply wait till the apex court forces it to move in the public interest?

Under the NDPS Act and the anti-smuggling laws, the competent authority is supposed to be helped mandatorily by the revenue, intelligence and police officers. From the small trickle of cases to the Appellate Tribunal for Forfeited Property from the competent authorities, despite the enormous increase in the illicit drug trade, it is evident that the authorities are either unable or unwilling to function. This goes on despite the Vohra Committee having highlighted the politician's mafia nexus. It is time the President questioned the finance andhome ministries on this insidious subversion before the apex court has to take all unto itself the task of protecting the constitution.