HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA
CRIMINAL PETITION Nos.176, 177 and 178 of 2023
COMMON ORDER:
Heard Sri M.Amarnath, learned counsel for the
petitioners in all the three Criminal Petitions, as well as
learned Additional Public Prosecutor who is representing the
respondent-State in all the three Criminal Petitions.
2. All the three Criminal Petitions are filed under Section 439 Cr.P.C. on behalf of the accused in Crime No.81 of 2022 of Venkatapuram Police Station, Mulugu District, seeking the Court to enlarge them on bail.
3. Making his submission, the learned counsel for the petitioners contends that the petitioners hail from Maharashtra State and the allegation against them is that they were found transporting ganja. Learned counsel states that as per the version of the prosecution, 24.418 kgs of ganja was seized from the possession of the petitioners. Learned counsel submits that the Police failed to follow the mandatory procedure prescribed under the Narcotic Drugs and Psychotropic Substances, Act, 1985 (hereinafter referred to as "the NDPS Act" for brevity) and thus, the entire 2 Dr CSL, J Crl.P.Nos.176, 177 & 178 of 2023 proceedings are vitiated and therefore, the petitioners are entitled for bail. Learned counsel also states that the petitioners are in judicial custody since 147 days. Learned counsel based his submission upon the procedural requirement to be followed under Section 50(1) of the NDPS Act.
4. The case of the prosecution, as could be perceived through the contents of the complaint, is that on 27.9.2022, while Police were conducting the vehicles checking near Takula bore bridge, they noticed one Skoda Car proceeding and when the said car was stopped and checked, Police noticed the petitioners present therein and also noticed some bags in the dikki. On suspicion, they secured two government officials and in their presence, the bags were opened and found presence of 24.418 kgs of ganja in those bags. On that, those bags were sealed and seized in the presence of independent witnesses and the petitioners/accused were examined and the mobile phones which were in their possession were seized.
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Dr CSL, J Crl.P.Nos.176, 177 & 178 of 2023
5. The submission made by the learned Additional Public Prosecutor is that Police followed all the required procedure and indeed, compliance of Section 50(1) of the NDPS Act i.e., personal search in the presence of gazetted officer is not required when the contraband was seized from a public place or from a vehicle or a container. Learned Additional Public Prosecutor also states that indeed, the entire procedure was conducted in the presence of M.R.O., who is a gazetted officer, and the panchanama reveals the said fact.
6. Section 50 of the NDPS Act reads as follows:-
"50. Conditions under which search of persons shall be conducted.--
(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the 4 Dr CSL, J Crl.P.Nos.176, 177 & 178 of 2023 person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy- two hours send a copy thereof to his immediate official superior."
7. In the decision that is relied upon by the Learned Additional Public Prosecutor i.e., in the case between State of Punjab Vs. Baljinder Singh and others1, the Hon'ble Supreme Court, analyzing the situation where Section 50(1) 1 (2019) 10 SCC 473 5 Dr CSL, J Crl.P.Nos.176, 177 & 178 of 2023 of the NDPS Act is required to be followed, at paras 15 and 16 of the judgment held as follows:-
"15. At this stage we may also consider the following observations from the decision of this Court in Ajmer Singh v. State of Haryana{(2010) 3 SCC 746}
15. The learned counsel for the appellant contended that the provision of Section 50 of the Act would also apply, while searching the bag, briefcase, etc. carried by the person and its non-compliance would be fatal to the proceedings initiated under the Act. We find no merit in the contention of the learned counsel. It requires to be noticed that the question of compliance or non-compliance with Section 50 of the NDPS Act is relevant only where search of a person is involved and the said section is not applicable nor attracted where no search of a person is involved. Search and recovery from a bag, briefcase, container, etc. does not come within the ambit of Section 50 of the NDPS Act, because firstly, Section 50 expressly speaks of search of person only. Secondly, the section speaks of taking of the person to be searched by the gazetted officer or a Magistrate for the purpose of search. Thirdly, this issue in our considered opinion is no more res integra in view of the observations 6 Dr CSL, J Crl.P.Nos.176, 177 & 178 of 2023 made by this Court in Madan Lal v. State of H.P. {(2003) 7 SCC 465}
16. A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises (see Kalema Tumba v. State of Maharashtra, {(1999) 8 SCC 257}, State of Punjab v. Baldev Singh {(1999) 6 SCC 172} and Gurbax Singh v. State of Haryana {(2001) 3 SCC 28}. The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in State of Punjab v. Baldev Singh, {(1999) 6 SCC 172}. Above being the position, the contention regarding non-compliance with Section 50 of the Act is also without any substance.'"
16. As regards applicability of the requirements under Section 50 of the Act is concerned, it is well settled that the mandate of Section 50 of the Act is confined to "personal search" and not to search of a vehicle or a container or premises."
8. Stating that the afore-mentioned decision does not apply to the facts of the case, learned counsel for the petitioners contends that the petitioners were examined in 7 Dr CSL, J Crl.P.Nos.176, 177 & 178 of 2023 the presence of a translator and their statements were recorded and thereafter, the cell phones were seized and the panchanama itself goes to establish absence of the said M.R.O. while examination of the petitioners/accused by the mediators in the presence of translator and seizure of cell phones.
9. In the case on hand, as per the version of the prosecution, the contraband i.e., ganja of 24.418 kgs was seized from the Skoda car in which the petitioners were allegedly present and thereafter, their statements were recorded and cell phones were seized. Even if the submission of the learned counsel for the petitioners is taken into consideration that at the time of seizure of cell phones, the presence of the said M.R.O. was not found, yet having regard to the non-applicability of Section 50(1) of the NDPS Act so far as the seizure of contraband is concerned, it cannot be held that the required procedure is not followed by Police.
10. So far as the claim for bail is concerned, as per the version of the prosecution, the petitioners were found transporting ganja which exceeds commercial quantity. 8
Dr CSL, J Crl.P.Nos.176, 177 & 178 of 2023 Therefore, the twin conditions required to be taken note under Section 37 of the NDPS Act have to be borne in mind. Where the Public Prosecutor opposes the application of bail, the Court has to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.
11. In the case on hand, having found prima facie material, this Court is not inclined to state that the petitioners are entitled for bail.
12. Resultantly, all the three Criminal Petitions are dismissed.
________________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA 23.01.2023 dr