Taraqi Ahmed vs The State (Delhi Administration)
1994 Latest Caselaw 485 Del

JUDGMENT

Dalveer Bhandari, J.

(1) The petitioner has filed bail application under Section 439 of the Code of Criminal Procedure against the order dated 19th April, 1994 passed by Additional Sessions Judge, Shahdara, Delhi, whereby he rejected the bail application of the petitioner under Section 21 of the N.D.P.S. Act. The petitioner is facing trial under Section 21 of the N.D.P.S. Act for alleged recovery of 900 grams of smack.

(2) The petitioner has submitted that there is violation of Section 50 of the N.D.P.S. Act, and that non-compliance of mandatory provisions must result in vitiating the entire trial. He has placed reliance on the judgment of the Supreme Court State of Punjab Vs. Balbir Singh, . In this case, the Supreme Court has held that compliance of Section 50 is mandatory. The Court has ob served that it is. imperative on the part of the officer intending to search, to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate. Thus, provisions of Section 50 are mandatory. To appreciate the controversy involved, it would be appropriate to reproduce Section 50 of the N.D.P.S. Act. Section 50, N.D.P.S. Act reads as under: "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 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 tosub-section(l). (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 person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female."

(3) According to the intention of the legislature before the search of a person is conducted, such person be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate. In other words, it is obligatory on the part of the concerned officer to inform the person to be searched and failure to do so would amount to non-compliance of Section 50, which is mandatory in character.

(4) It would mean that the accused has to be informed about this requirement of Section 50. Their lordships of the Supreme Court also clearly spelt out the intention of the Supreme Court in its recent case State of Punjab Vs BalbirSingh. According to the language of Section 50 and the ratio of the Supreme Court, the accused has to be informed. When ratio of this case is applied to the facts of the instant case where 'the search of the accused, in fact, has been conducted in the presence of a Gazetted Officer Mr. Balram Singh, A.C.P. Salimpur, therefore, there is no question of non-compliance of Section 50 of the N.D.P.S. Act, as argued by the learned counsel for the petitioner.

(5) Learned counsel has also placed reliance on Maya Vs. State. Ii (1994) Ccr 1384. In this case, the petitioner was admitted to bail because there was non-compliance of the mandatory provisions and the accused was not given an option under Section 50 of the said Act, whereas in the instant case, the search was conducted in the presence of a Gazetted Officer. Since the facts of the case cited are .entirely different, therefore, the petitioner cannot derive any benefit from that the order of V.B. Bansal, J. given in the case of Maya (supra).

(6) Similarly, Satish @ Bombaiya vs. State, 1991 Jcc 677, another case cited by the petitioner is also of no assistance to him because in the said case also, there was total non-compliance of Section 50 of the N.D.P.S. Act and the Court set aside the conviction of the accused. In the instant case, there is no non-compliance of Section 50 because the search itself was conducted in the presence of the Gazetted Officer. Learned counsel also placed reliance on the order passed in Crl.M(M) No-397/93 on 9th May, 1994. This order also does not help the petitioner.

(7) I have heard learned counsel for the petitioner at length and perused the judgments cited by him. Mere reading of Section 50 reaches the conclusion that intention of the legislature is that Section 50 should be mandatory. There seem to be good reasons for this when there is such severe and harsh punishments for a person who is found guilty under the provisions of the N.D.P.S. Act. Then it becomes the bounden duty and obligation to ensure that innocent people are falsely implicated in these cases. Therefore, there has to be strict compliance of Section 50 of the Act. The Supreme Court has also clearly spelt out the legislative intent in State of Punjab Vs Balbir Singh (supra) by declaring Section 50 mandatory.

(8) When the ratio of the Supreme Court is applied on the facts of the instant case, then the conclusion is irresistible that there is compliance of Section 50 of the N.D.P.S. Act and the trial cannot be vitiated on that count.

(9) The bail application is devoid of any merits and is accordingly dismissed.