Delhi High Court
Vinay vs State Of Nct Of Delhi on 17 August, 2023
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: August 17, 2023
+ BAIL APPLN. 1983/2022 & CRL.M.(BAIL) 1457/2022
VINAY ..... Petitioner
Through: Mr. Arvind Kumar Shukla, Ms. Reeta
Shama, Ms. Neena Shukla,
Mr. Shantanu Shukla, Mr. Tushar
Swami and Ms. Susmita Devi
Ghimiray, Advocates.
versus
STATE OF NCT OF DELHI ..... Respondent
Through: Mr. Aman Usman, APP for the State.
SI Rinku, PS Bawana.
CORAM:
HON'BLE MR. JUSTICE AMIT SHARMA
JUDGMENT
AMIT SHARMA, J.
1. The present application under Section 439 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as „CrPC‟) seeks regular bail in case
FIR No. 29/2019 under Sections 21/29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as „NDPS Act‟)
registered at PS Crime Branch.
2. Briefly stated, the facts of the present case, as stated in the chargesheet,
are as under:
i. On 08.02.2019, at around 01:30 PM, an informer appeared at the
Narcotics Cell Office and informed an Officer that a person, Vinay, i.e.,
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the applicant, who resides at Raghuveer Nagar, supplies heroin in
Delhi. The infomer stated that the said person, on that day, between
03:00 PM to 03:30 PM will supply a consignment of heroin to a person
near Parmanand Special Surgery Hospital, Ring Road, Delhi.
ii. After receiving the said information, formalities under Section 42 of the
NDPS Act were completed and a raiding party was organized. The said
raiding party and the informer alongwith the Investigating Officer, a
bag, a Field-Testing Kit and an electronic weighing machine left for the
spot in a private car.
iii. After reaching the spot, the raiding party asked 5-6 passersby to join
the raid, however, all of them gave reasons and disagreed to join,
without disclosing their names and addresses.
iv. At around 03:15 PM, a person wearing a yellow and blue coloured
jacket and a violet pant/lower, carrying a pink/white bag in his hand
was seen coming from the ISBT Kashmere Gate side on foot. The said
person was identified by the informer as Vinay, i.e., the present
applicant.
v. The applicant then stopped at a spot near the Parmanand Special
Surgery Hospital and stood on the road. He was looking around while
waiting at the spot. After waiting for about 5 minutes, the applicant
started returning towards ISBT Kashmere Gate. At that time, at around
03:20 PM, ASI Sudhir with the help of other staff tried to surround the
applicant, however, on sensing police presence, the applicant threw the
carry bag on the road and tried to flee. The applicant was apprehended
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by Head Constable Dharmender and Constable Shani and ASI Sudhir
picked up the aforesaid carry bag.
vi. Thereafter, on interrogation, the name and parentage of the applicant
was revealed. During this time, it is stated that the raiding team
requested 4-5 persons who had gathered there on account of „curiosity‟
to join the police proceedings. However, on hearing about „drugs‟, none
of the aforesaid persons agreed to join the said proceedings giving their
reasons, and without disclosing their names. It is further stated that due
to paucity of time, the names of the said persons could not be noted and
neither any notice could be given to them. Thereafter, HC Dharmendra
was directed to bring a private car. Thereafter, the raiding officer
introduced himself and his team to the applicant and told him about the
secret information. Thereafter, the carry bag which was held by the
applicant and was thrown by him and was subsequently picked up by
the raiding officer was checked. Upon checking, it was found to contain
heavy plastic bag tied with an elastic band. On opening the same, a
mathmaila (muddy) colored substance was found.
vii. After removing the band, the contents of the aforesaid heavy plastic
bag were tested with the help of a field-testing kit and it tested positive
for heroin. The substance weighed 500 grams on the electronic
weighing machine. Two samples of 5 grams each were drawn and
sealed. Similarly, the remaining 490 grams was sealed.
viii. It is alleged that thereafter, since there was a possibility of more
recovery of contraband, SI again informed the applicant about the
secret information and the applicant was served with a notice under
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Section 50 of the NDPS Act but he declined to be searched in the
presence of a Gazetted Officer or a Magistrate. Personal search of the
applicant was carried out but no contraband was recovered from his
person.
ix. Accordingly, the present FIR was registered under Section 21 of the
NDPS Act. During the course of investigation, the disclosure statement
of the applicant was recorded. The applicant disclosed that he had
procured the recovered contraband from one Smt. Shyama, his mother-
in-law. A mobile phone was recovered from the personal search of the
applicant.
x. Upon completion of investigation, the chargesheet in the present case
was filed qua the applicant and co-accused Shyama under Section
21/29 of the NDPS Act on 04.06.2019. Vide order dated 06.12.2019,
the learned ASJ (Central), Tis Hazari framed charges qua the present
applicant under Section 21 of the NDPS Act and discharged co-accused
Shyama.
3. Learned counsel appearing on behalf of the applicant submitted that in
the present case, the prosecution has not complied with the mandatory
provisions of Section 50 of the NDPS Act inasmuch as the carry bag that was
carried by the applicant, which allegedly contained the contraband, was
searched before a notice under Section 50 of the NDPS Act was served upon
him. It was submitted that Section 50 of the NDPS Act is a mandatory
provision and non-compliance thereof renders the recovery suspicious and
effectively vitiates the trial and therefore, the applicant is entitled to be
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released on bail. In support of the said contention, learned counsel for the
applicant placed reliance on the following judgments:
i. Dilip and Anr. v. State of M.P., (2007) 1 SCC 450.
ii. Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609.
iii. S.K. Raju @ Abdul Haque @ Jagga v. State of West Bengal, (2018) 9
SCC 708.
iv. Kamruddin v. State of NCT of Delhi, 2022/DHC/004767.
4. It was further the contention of learned counsel for the applicant that
the recovery in the present case is also rendered doubtful on account of the
fact that in the FIR, it is stated that the recovered substance is „muthmaila' in
colour, however, the report of the Forensic Science Laboratory („FSL‟)
records that the same was „pink‟.
5. It was submitted by learned counsel for the applicant that the latter has
been in judicial custody for over four years and five months, since his arrest
on 09.02.2019 and the trial is likely to take a long time. It was submitted that
prolonged incarceration is a violation of his fundamental right guaranteed
under Article 21 of the Constitution of India. The applicant is a 28 year old
young man and has a responsibility to take care of his ailing mother, wife and
an infant child. It was further submitted that the applicant has no previous
involvements. In the present case as well, he has been released on interim bail
on multiple occasions and has never misused his liberty in any manner. It was
urged that the necessary recoveries in the case have been effected, the
investigation is complete and a chargehseet has been filed. The trial is
underway and there is no apprehension of the applicant evading trial or
tampering with evidence and influencing the witnesses. In view thereof, it is
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urged that the applicant be released on bail. In support of the said contention,
learned counsel for the applicant placed reliance on the following judgments
rendered by the Hon‟ble Supreme Court:
i. Rabi Prakash v. The State of Odisha, Order dated 13.07.2023 in Special
Leave to Appeal (Crl.) 4169/2023.
ii. Mohd. Muslim @ Hussain, Judgment dated 28.03.2023 in Criminal
Appeal No. 943/2023.
6. Per contra, learned APP for the Stated opposed the present application
for bail and submitted that it is an admitted case of the prosecution that the
carry bag that the applicant was carrying was searched before he was served
with a notice under Section 50 of the NDPS Act. Learned APP drew the
attention of this Court to the chargesheet filed in the present case, and
specifically to the portion where it has been recorded that the applicant threw
the carry bag that he was carrying, which was then picked up and searched by
a police officer. It was submitted that in view of the said sequence of events,
it cannot be said that Section 50 of the NDPS Act was not complied with.
Learned APP for the State placed reliance on an order dated 25.01.2022
passed by the Hon‟ble Supreme Court in SLP (Crl.) 514/2021 titled Dayalu
Kashyap v. The State of Chattisgarh, wherein a distinction has been drawn
between a chance recovery and one which is effected pursuant to specific
information. It was submitted that admittedly, in the present case, the
recovery was made based on prior information. It was submitted that in
Dayalu Kashyap (supra), the recovery was effected based on a specific
information that the appellant therien was carrying contraband in a wooden
kanwad. A similar objection regarding compliance of Section 50 of the NDPS
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Act was raised as the kanwad was searched before a notice under Section 50
was served. In view of the facts of the case, the Hon‟ble Supreme Court held
as under:
"In the conspectus of the facts of the case, we find the recovery was
in a polythene bag which was being carried on a Kanwad. The
recovery was not in person. Learned counsel seeks to expand the
scope of the observations made by seeking to contend that if the
personal search is vitiated by violation of Section 50 of the NDPS
Act, the recovery made otherwise also would stand vitiated and
thus, cannot be relied upon. We cannot give such an extended view
as is sought to be contended by learned counsel for the appellant."
(emphasis supplied)
It was the contention of learned APP for the State that as far personal
search is concerned, compliance with Section 50 of the NDPS Act is
mandatory. However, it was submitted that the said provision is not attracted
when the search being conducted is of anything that a person is carrying, like
in the present case, where the search was of a carry bag that the applicant was
carrying. In support of the said contention, learned APP for the State further
placed reliance on a judgment dated12.04.2019 passed by the Hon‟ble High
Court of Punjab and Haryna in CRA-D-1076-DB of 2017 (O&M), titled
Harpreet Singh alias Ganju v. State of Punjab.
7. Without prejudice to the aforesaid argument, learned APP for the State
urged that in any case, in the present case, Section 50 of the NDPS Act will
have no application to the search of the carry bag that the applicant was
carrying since the same was searched after it was thrown by him and was
picked up by a police officer. The search of the bag was not conducted while
it was still on the applicant‟s person.
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8. It was also the contention of learned APP for the State that compliance
of Section 50 of the NDPS Act is a matter of trial and cannot be considered at
this stage, especially in cases involving recovery of a commercial quantity,
where rigors of Section 37 of the NDPS Act would be attracted.
9. Heard learned counsel for the parties and perused the record.
10. At the outset, it is noted that the contention of learned counsel for the
applicant regarding the alleged discrepancy in relation to the colour of the
recovered contraband in the FIR and the FSL Report is an issue of fact which
cannot be appreciated at this stage. The said issue is a matter for trial. The
applicant will have an opportunity to examine the witnesses in relation to the
seizure and the witnesses who have handled the sample right from the
moment it was seized till it was delivered to the FSL. The alleged discrepancy
is a matter to be adjudicated upon by the learned Trial Court after
examination of said evidence.
11. The primary ground on the basis of which bail has been sought in the
present case is the alleged non-compliance of Section 50 of the NDPS Act.
Learned APP for the State contended that the same is a matter for trial and
cannot be looked into at this stage. The said contention cannot be sustained
because this Court, for the purposes of deciding the present application within
the contours of Section 37 of the NDPS Act, has to examine the legal issue
raised herein. The Hon‟ble Supreme Court, in Union of India v. Shiv
Shankar Kesari, (2007) 7 SCC 798, while explaining the term „reasonable
ground‟ used in Section 37(1)(b)(ii) of the NDPS Act, held as under:
"7. The expression used in Section 37(1)(b)(ii) is "reasonable
grounds". The expression means something more than prima facie
grounds. It connotes substantial probable causes for believing that the
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accused is not guilty of the offence charged and this reasonable belief
contemplated in turn points to existence of such facts and circumstances
as are sufficient in themselves to justify recording of satisfaction that the
accused is not guilty of the offence charged.
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11. The court while considering the application for bail with
reference to Section 37 of the Act is not called upon to record a
finding of not guilty. It is for the limited purpose essentially confined
to the question of releasing the accused on bail that the court is
called upon to see if there are reasonable grounds for believing that
the accused is not guilty and records its satisfaction about the
existence of such grounds. But the court has not to consider the
matter as if it is pronouncing a judgment of acquittal and recording
a finding of not guilty."
(emphasis supplied)
Further, more recently, in Mohd. Muslim alias Hussain v. State (NCT
of Delhi), 2023 SCC OnLine SC 352, the Hon‟ble Supreme Court held as
under:
"20. A plain and literal interpretation of the conditions under Section 37
(i.e., that Court should be satisfied that the accused is not guilty and
would not commit any offence) would effectively exclude grant of bail
altogether, resulting in punitive detention and unsanctioned preventive
detention as well. Therefore, the only manner in which such special
conditions as enacted under Section 37 can be considered within
constitutional parameters is where the court is reasonably satisfied on
a prima facie look at the material on record (whenever the bail
application is made) that the accused is not guilty. Any other
interpretation, would result in complete denial of the bail to a person
accused of offences such as those enacted under Section 37 of the NDPS
Act.
21. The standard to be considered therefore, is one, where the court
would look at the material in a broad manner, and reasonably see
whether the accused‟s guilt may be proved. The judgments of this court
have, therefore, emphasized that the satisfaction which courts are
expected to record, i.e., that the accused may not be guilty, is only prima
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facie, based on a reasonable reading, which does not call for meticulous
examination of the materials collected during investigation (as held
in Union of India v. Rattan Malik). Grant of bail on ground of undue
delay in trial, cannot be said to be fettered by Section 37 of the Act,
given the imperative of Section 436A which is applicable to offences
under the NDPS Act too (ref. Satender Kumar Antil supra). Having
regard to these factors the court is of the opinion that in the facts of this
case, the appellant deserves to be enlarged on bail."
In view of the above, this Court, for the limited purpose of deciding the
present bail application, has to arrive at a prima-facie finding with regard to
the legal issues raised herein.
12. The facts in the present case are not disputed to the extent that it is an
admitted case of prosecution that no notice under Section 50 of NDPS Act
was given to the applicant at the time the carry bag alleged to be belonging to
him was searched. Consequent upon recovery of the contraband from the said
carry bag, notice under Section 50 of the NDPS Act was given to the
applicant before his personal search.
13. It is pertinent to note that the case of the prosecution is that this carry
bag was held by the applicant in his right hand before it is stated to have been
thrown by him. It is also an admitted case of the prosecution that the search of
the said carry bag was conducted after apprehending the present applicant and
in his presence after informing him about the secret information. So, the issue
is that whether notice under Section 50 of the NDPS Act should have been
given to the applicant before commencing the search of the said carry bag.
14. The law with respect to the compliance of Section 50 of the NDPS Act
is no more res-integra as a constitution bench of the Hon‟ble Supreme Court
in Vijaysinh Chandubha Jadeja v. State Of Gujarat, (2011) 1 SCC 609
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has clearly held that it is mandatory that the suspect is informed of his right to
be searched in the presence of a Gazetted Officer or Magistrate. As far as the
applicability of Section 50 of the NDPS Act is concerned, the Hon‟ble
Supreme Court, in State of Rajasthan v. Parmanand & Anr., (2014) 5 SCC
345 has held that Section 50 of the NDPS Act would be attracted in a case
where the search of the person as well as a bag carried by the said person is
conducted. It was held as under:
"13. In Dilip v. State of M.P. [(2007) 1 SCC 450 : (2007) 1 SCC (Cri)
377] , on the basis of information, search of the person of the accused
was conducted. Nothing was found on their person. But on search of the
scooter they were riding, opium contained in plastic bag was recovered.
This Court held that : (SCC p. 456, para 16)
"16. ... provisions of Section 50 might not have been required to be
complied with so far as the search of scooter is concerned, but keeping in
view the fact that the person of [the accused] was also searched, it was
obligatory on the part of [the officers] to comply with the said
provisions."
which was not done. This Court confirmed the acquittal of the accused.
14. In Union of India v. Shah Alam [(2009) 16 SCC 644 : (2010) 3
SCC (Cri) 377] , heroin was first recovered from the bags carried by the
respondents therein. Thereafter, their personal search was taken but
nothing was recovered from their person. It was urged that since personal
search did not lead to any recovery, there was no need to comply with
the provisions of Section 50 of the NDPS Act. Following Dilip [(2007) 1
SCC 450 : (2007) 1 SCC (Cri) 377] , it was held that since the provisions
of Section 50 of the NDPS Act were not complied with, the High Court
was right in acquitting the respondents on that ground.
15. Thus, if merely a bag carried by a person is searched without
there being any search of his person, Section 50 of the NDPS Act will
have no application. But if the bag carried by him is searched and his
person is also searched, Section 50 of the NDPS Act will have
application. In this case, Respondent 1 Parmanand‟s bag was searched.
From the bag, opium was recovered. His personal search was also carried
out. Personal search of Respondent 2 Surajmal was also conducted.
Therefore, in the light of the judgments of this Court mentioned in the
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preceding paragraphs, Section 50 of the NDPS Act will have
application."
Further, taking note of the aforesaid judgment, a three Judge Bench of
the Hon‟ble Supreme Court in S.K. Raju @ Abdul Haque @ Jagga v. State
of West Bengal, (2018) 9 SCC 708 has held that Section 50 of the NDPS Act
would be attracted in a case where the search of the person as well as bag
carried by the said person is searched. It was held as under:
"20. The question which arises before us is whether Section 50(1)
was required to be complied with when charas was recovered only
from the bag of the appellant and no charas was found on his
person. Further, if the first question is answered in the affirmative,
whether the requirements of Section 50 were strictly complied with
by PW 2 and PW 4.
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22. PW 2 conducted search of the bag of the appellant as well as
of the appellant's trousers. Therefore, the search conducted by PW 2
was not only of the bag which the appellant was carrying, but also of
the appellant's person. Since the search of the person of the
appellant was also involved, Section 50 would be attracted in this
case. Accordingly, PW 2 was required to comply with the
requirements of Section 50(1). As soon as the search of a person
takes place, the requirement of mandatory compliance with Section
50 is attracted, irrespective of whether contraband is recovered from
the person of the detainee or not. It was, therefore, imperative for
PW 2 to inform the appellant of his legal right to be searched in the
presence of either a gazetted officer or a Magistrate. From Ext. 3, it
can be discerned that the appellant was informed of his legal right to be
searched in the presence of a Magistrate or a gazetted officer. The
appellant opted for the latter alternative. Ext. 4 is a record of the events
after the arrival of PW 4 on the scene. After the arrival of PW 4, the
appellant was once again asked by him, whether he wished to be
searched in the presence of a gazetted officer or a Magistrate. This was
the second option which was presented to him. When he reiterated his
desire to be searched before a gazetted officer, PW 4 inquired of the
appellant whether he wished to search PW 2 before his own search was
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conducted by PW 2. The appellant agreed to search PW 2. Only the
personal belongings of PW 2 were found by the appellant. It was only
after this that a search of the appellant was conducted and charas
recovered. Before the appellant‟s search was conducted, both PW 2 and
PW 4 on different occasions apprised the appellant of his legal right to be
searched either in the presence of a gazetted officer or a Magistrate. The
options given by both PW 2 and PW 4 were unambiguous. Merely
because the appellant was given an option of searching PW 2 before the
latter conducted his search, would not vitiate the search.
In Parmanand [State of Rajasthan v. Parmanand, (2014) 5 SCC 345 :
(2014) 2 SCC (Cri) 563] , in addition to the option of being searched by
the gazetted officer or the Magistrate, the detainee was given a "third"
alternative by the empowered officer which was to be searched by an
officer who was a part of the raiding team. This was found to be contrary
to the intent of Section 50(1). The option given to the appellant of
searching PW 2 in the case at hand, before the latter searched the
appellant, did not vitiate the process in which a search of the appellant
was conducted. The search of the appellant was as a matter of fact
conducted in the presence of PW 4, a gazetted officer, in consonance
with the voluntary communication made by the appellant to both PW 2
and PW 4. There was strict compliance with the requirements of Section
50(1) as stipulated by this Court in Vijaysinh [Vijaysinh Chandubha
Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri)
497]."
(emphasis supplied)
In another judgment of a three judge bench of the Hon‟ble Supreme
Court in State of Punjab v. Baljinder Singh & Anr. (2019) 10 SCC 473, it
has been held as under:
"13. The law is thus well settled that an illicit article seized from the
person during personal search conducted in violation of the safeguards
provided in Section 50 of the Act cannot by itself be used as admissible
evidence of proof of unlawful possession of contraband. But the question
is, if there be any other material or article recovered during the
investigation, would the infraction with respect to personal search also
affect the qualitative value of the other material circumstance?
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14. At this stage we may also consider the following observations
from the decision of this Court in Ajmer Singh v. State of
Haryana [Ajmer Singh v. State of Haryana, (2010) 3 SCC 746 : (2010) 2
SCC (Cri) 475] : (SCC pp. 752-53, para 15)
"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
made by this Court in Madan Lal v. State of H.P. [Madan Lal v. State of
H.P., (2003) 7 SCC 465 : 2003 SCC (Cri) 1664] The Court has observed:
(SCC p. 471, para 16)
„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 [Kalema Tumba v. State of Maharashtra, (1999) 8 SCC
257 : 1999 SCC (Cri) 1422] , State of Punjab v. Baldev Singh [State of
Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080]
and Gurbax Singh v. State of Haryana [Gurbax Singh v. State of
Haryana, (2001) 3 SCC 28 : 2001 SCC (Cri) 426] ). 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 Baldev
Singh case [State of Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999
SCC (Cri) 1080] . Above being the position, the contention regarding
non-compliance with Section 50 of the Act is also without any
substance.‟"
15. 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
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the Act is confined to "personal search" and not to search of a vehicle or
a container or premises.
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17. In the instant case, the personal search of the accused did not
result in recovery of any contraband. Even if there was any such
recovery, the same could not be relied upon for want of compliance of
the requirements of Section 50 of the Act. But the search of the vehicle
and recovery of contraband pursuant thereto having stood proved, merely
because there was non-compliance of Section 50 of the Act as far as
"personal search" was concerned, no benefit can be extended so as to
invalidate the effect of recovery from the search of the vehicle. Any such
idea would be directly in the teeth of conclusion (3) as aforesaid.
18. The decision of this Court in Dilip case [Dilip v. State of M.P.,
(2007) 1 SCC 450 : (2007) 1 SCC (Cri) 377] , however, has not adverted
to the distinction as discussed hereinabove and proceeded to confer
advantage upon the accused even in respect of recovery from the vehicle,
on the ground that the requirements of Section 50 relating to personal
search were not complied with. In our view, the decision of this Court in
the said judgment in Dilip case [Dilip v. State of M.P., (2007) 1 SCC 450
: (2007) 1 SCC (Cri) 377] is not correct and is opposed to the law laid
down by this Court in Baldev Singh [State of Punjab v. Baldev Singh,
(1999) 6 SCC 172 : 1999 SCC (Cri) 1080] and other judgments."
It may be noted that in the aforesaid judgment in Baljinder Singh
(supra), the judgment rendered by the earlier three-judge bench in S.K. Raju
(supra) was not referred to and reference was made to judgment rendered by
a constitution bench of the Hon‟ble Supreme Court, in State of Punjab v.
Baldev Singh, (1999) 6 SCC 172, regarding applicability of Section 50 of the
NDPS Act, wherein it was held as under:
"12. On its plain reading, Section 50 would come into play only in
the case of a search of a person as distinguished from search of any
premises etc. However, if the empowered officer, without any prior
information as contemplated by Section 42 of the Act makes a search or
causes arrest of a person during the normal course of investigation into an
offence or suspected offence and on completion of that search, a
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contraband under the NDPS Act is also recovered, the requirements of
Section 50 of the Act are not attracted."
(emphasis supplied)
15. A learned Single Judge of this Court, in Akhilesh Bharti v. State,
2020 SCC OnLine Del 306, took note of the aforesaid decisions and held as
under:
"26. It is essential to observe that vide the verdict of the
Hon‟ble three Judge Bench of the Hon‟ble Supreme Court dated
05.09.2018 in "SK. Raju alias Abdul Haque alias Jagga v. State of West
Bengal" (2018) 9 SCC 708, it has specifically been observed to the effect
that where merely a bag carried by a person is searched without there
being any search of his person, Section 50 of the NDPS Act, 1985 will
have no application but if the personal search of the accused is also
conducted, the provisions of Section 50 of the NDPS Act, 1985 would
wholly apply. The verdict of the Hon‟ble Supreme Court dated
15.10.2019 in "State of Punjab v. Baljinder Singh" 2019 SCC OnLine
SC 1408 is also a verdict of the Hon‟ble three Judge Bench of the
Hon‟ble Supreme Court in which the personal search of the accused did
not result into recovery of any contraband but there was a recovery of
contraband effected from the vehicle in which the accused persons were
seated with one of them being the driver. Though, the Hon‟ble Supreme
Court in "State of Punjab v. Baljinder Singh" (supra) has observed to the
effect that the judgment of the Hon‟ble Supreme Court in Dilip's case is
not correct and is opposed to the decision to the law laid down by the
Hon‟ble Supreme Court in Baldev Singh's and other judgments, the
observations in the verdict of the Hon‟ble Supreme Court in "SK. Raju
alia Abdul Haque alias Jagga v. State of West Bengal" (supra) dated
05.09.2018 (which are not adverted to in "State of Punjab v. Baljinder
Singh" (supra) dated 15.10.2019) lay down a fine distinction and in these
circumstances thus, where the contraband is recovered from an object
which is held by an accused in his hand and the search of the person of
such an accused is also conducted which lead to no recovery of any
contraband, though, there are recoveries of other personal assets of a
person from his personal search, in view of the judgments of the Hon‟ble
Supreme Court in "SK. Raju alia Abdul Haque alias Jagga v. State of
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West Bengal" (supra), the non compliance of Section 50 of the NDPS
Act, 1985 would prima facie vitiate the recovery."
16. Similarly, a coordinate bench of this Court, in Kamruddin v. State
(NCT of Delhi), 2022 SCC OnLine Del 3761, while taking note of the
aforesaid decision in Akhilesh Bhari (supra), held as under:
"23. In the decision of S.K. Raju (supra), the Hon‟ble Supreme
Court has clearly held that since the search of the person of the appellant
therein was also involved, therefore, Section 50 of the NDPS Act would
be attracted in that case and accordingly the requirement of Section 50(1)
of the NDPS Act was insisted.
24. So far as the decision relied upon by learned APP for the state
in the case of State of HP v. Pawan Kumar14 is concerned, it is to be
stated that in paragraph No. 17 of the decision in the case of S.K.
Raju (supra) the Hon‟ble Supreme Court has taken note of the decision in
the case of Pawan Kumar (supra). The distinction between the two
situations has been considered and if a bag, article or container etc. being
carried by an accused is subjected to search independently without there
being any search of the person of the appellant, the decision in the case
of Pawan Kumar (supra) would have application. However, in a case
where the person of accused is subjected to search along with the search
of bag, article or container which he holds in his hand, there is
requirement of compliance of Section 50 of the NDPS Act."
17. So far as the reliance placed by learned APP for the State on a decision
of the Hon‟ble Supreme Court in Dayalu Kashyap (supra) is concerned, it is
pertinent to observe that the said decision has been rendered in the context of
a different factual matrix. The contention raised therein was as under:
"Learned counsel submits that the option given to the appellant to take a
third choice other than what is prescribed as the two choices under sub-
Section (1) of Section 50 of the Act is something which goes contrary to
the mandate of the law and in a way affects the protection provided by
the said Section to the accused.... The third option stated to be given to
the accused to get himself searched from the Officer concerned not
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being part of the statute, the same could not have been offered to the
appellant and thus, the recovery from him is vitiated."
In the said case, even though a notice under Section 50 of the NDPS
Act was given, its non-compliance was contended because the third option in
relation to search was given to accused persons, regarding getting searched by
the concerned officer present at the spot, which is not an option under Section
50 of the NDPS Act.
18. In view of the decisions noted hereinabove, and in particular, in view of
the decision of the Hon‟ble Supreme Court in S.K. Raju (supra), a notice
under Section 50 of the NDPS Act is attracted in case of a comprehensive
search of the person as well as a bag being carried/held by him/her.
19. Admittedly, in the present case, the notice under Section 50 of the
NDPS Act was given after the recovery of the contraband from the carry bag
alleged to have been thrown by the applicant. It is also an admitted case that
the police acted on the basis of prior information in relation to the applicant
being allegedly involved in commission of offences under the NDPS Act. It is
not the case of the prosecution that the carry bag thrown by the applicant was
picked up and searched before he was apprehended and brought to the spot.
The recovery was admittedly made in his presence. From an examination of
the facts of the case, it has emerged that the search of the carry bag and the
subsequent personal search of the applicant were comprehensive and not
separate, as claimed by the prosecution.
20. The relevance of a notice under Section 50 of the NDPS Act and its
mandatory compliance was clearly spelt out by the Hon‟ble Supreme Court in
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State of Punjab v. Balbir Singh, (1994) 3 SCC 299, wherein it was held as
under:
"16. One another important question that arises for consideration is
whether failure to comply with the conditions laid down in Section 50 of
the NDPS Act by the empowered or authorised officer while conducting
the search, affects the prosecution case. The said provision (Section 50)
lays down that any officer duly authorised under Section 42, who is
about to search any person under the provisions of Sections 41, 42 and
43, shall, if such person so requires, take him without unnecessary delay
to the nearest Gazetted Officer of any of the departments mentioned in
Section 42 or to the nearest Magistrate and if such requisition is made by
the person to be searched, the authorised officer concerned can detain
him until he can produce him before such Gazetted Officer or the
Magistrate. After such production, the Gazetted Officer or the
Magistrate, if sees no reasonable ground for search, may discharge the
person. But otherwise he shall direct that the search be made. To avoid
humiliation to females, it is also provided that no female shall be
searched by anyone except a female. The words "if the person to be
searched so desires" are important. One of the submissions is whether
the person who is about to be searched should by himself make a request
or whether it is obligatory on the part of the empowered or the authorised
officer to inform such person that if he so requires, he would be produced
before a Gazetted Officer or a Magistrate and thereafter the search would
be conducted. In the context in which this right has been conferred, it
must naturally be presumed that it is imperative on the part of the officer
to inform the person to be searched of his right that if he so requires to be
searched before a Gazetted Officer or a Magistrate. To us, it appears
that this is a valuable right given to the person to be searched in the
presence of a Gazetted Officer or a Magistrate if he so requires,
since such a search would impart much more authenticity and
creditworthiness to the proceedings while equally providing an
important safeguard to the accused. To afford such an opportunity to
the person to be searched, he must be aware of his right and that can be
done only by the authorised officer informing him. The language is clear
and the provision implicitly makes it obligatory on the authorised officer
to inform the person to be searched of his right.
xxx
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18. Under the Act wide powers are conferred on the officers and
deterrent sentences are also provided for the offences under the Act. It is
obvious that the legislature while keeping in view the menace of
illicit drug trafficking deemed it fit to provide for corresponding
safeguards to check the misuse of power thus conferred so that any
harm to innocent persons is avoided and to minimise the allegations
of planting or fabricating by the prosecution, Section 50 is enacted.
xxx
20. In Miranda v. Arizona [384 US 436 : 16 L Ed 2d 694 (1966)] the
Court, considering the question whether the accused be apprised of his
right not to answer and keep silent while being interrogated by the
police, observed thus:
"At the outset, if a person in custody is to be subjected to
interrogation, he must first be informed in clear and unequivocal terms
that he has the right to remain silent. For those unaware of the privilege,
the warning is needed simply to make them aware of it -- the threshold
requirement for an intelligent decision as to its exercise. More important,
such a warning is an absolute prerequisite in overcoming the inherent
pressures of the interrogation atmosphere."
It was further observed thus:
"The warning of the right to remain silent must be accompanied by
the explanation that anything said can and will be used against the
individual in court. This warning is needed in order to make him aware
not only of the privilege, but also of the consequences of foregoing it. It
is only through an awareness of these consequences that there can be any
assurance of real understanding and intelligent exercise of the privilege.
Moreover, this warning may serve to make the individual more acutely
aware that he is faced with a phase of the adversary system -- that he is
not in the presence of persons acting solely in his interest."
When such is the importance of a right given to an accused person in
custody in general, the right by way of safeguard conferred under
Section 50 in the context is all the more important and valuable.
Therefore it is to be taken as an imperative requirement 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 the provisions of Section
50 are mandatory."
(emphasis supplied)
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21. In Sanjeev and Another v. State of Himachal Pradesh, (2022) 6
SCC 294, the Hon‟ble Supreme Court was dealing with a similar factual
situation as in the present case. In the said case, the accused persons tried to
abscond but were apprehended. A bag that they were sitting beside was
subsequently retrieved and searched. It was held as under:
"3. The prosecution mainly relied upon the testimonies of PW 7 and
PW 8, namely, Constable Om Prakash and Head Constable Nand Lal
respectively. According to these witnesses, on the day in question at
about 9.00 p.m. when the police party had reached the other side of
the Ruara Bridge, they found the appellants sitting by the side of
bonfire and a bag was lying on the ground near them. As the police
put searchlight towards the direction of the appellants, the
appellants tried to run away. The police party followed them and
after having crossed a distance of about 100 m, they were nabbed.
Thereafter, the bag was also retrieved which was found to contain
charas weighing about 1.5 kg. According to the witnesses, the
electronic weighing scale which was with the police party was utilised to
check the weight of the contraband. Thereafter, the procedure for taking
personal search of the accused was followed.
xxx
10. We have checked the original record to satisfy ourselves. Exts.
PW 8/B, PW 8/C, PW 8/D and PW 8/E, which are arrest memos, do not
reflect that any option or choice was given to the accused before their
personal search was undertaken. It is true that the personal search
did not result in recovery of any contraband material but the non-
compliance of requirement of affording an option, was one of the
reasons which weighed with the trial court in disbelieving the case of
the prosecution."
(emphasis supplied)
22. In the present case, as recorded hereinabove, the applicant was
apprehended and the carry bag, which he had allegedly thrown, was lifted.
The raiding officer requested some passersby to join the police proceedings. It
is stated that upon hearing about „drugs‟, these persons refused to join the
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proceedings with regard to search of the carry bag. Before the carry bag was
searched, the applicant was informed about the secret information and
thereafter, the carry bag was opened and found to contain contraband.
Thereafter, the team proceeded to conduct the formalities of drawing of
samples and sealing the case property. It is the case of the prosecution that
after completion of the same, they proceeded to search the applicant and again
informed him about the secret information and gave him a notice under
Section 50 of the NDPS Act. Therefore, it is abundantly clear that at the time
of checking/search of the carry bag, alleged to have been in the applicant‟s
hand, at a prior point in time, the raiding team had suspicion with respect to
possible recovery of contraband.
23. It is important to be borne in mind that Section 50 of the NDPS Act is
mandatory in nature and it provides an important safeguard to the accused. It
ensures that subsequent allegations of planting of evidence on part of the
investigating agency are avoided and ensures that the stringent provisions of
the NDPS Act are not misused by investigating agencies. In the present case,
the police party acted on the basis of prior information in relation to the
applicant. It is alleged that on spotting the police, the applicant tried to flee
after throwing the carry bag. It is not in dispute that the said carry bag was
searched in the presence of the applicant after he was apprehended. Applying
the ratio of S.K. Raju (supra) to the facts of the present case, this Court is of
the opinion that Section 50 of the NDPS Act will be attracted in case of a
search of the carry bag, as well as the personal search of the applicant. It
cannot be said that notice under Section 50 of the NDPS Act was not required
for the search of the carry bag. It is pertinent to note that conscious possession
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of the said carry bag is being attributed to the present applicant on account of
the fact that as per the raiding party, he was holding the same in his hand.
Apart from the said fact, there is no marking or identification which can
connect the carry bag with the applicant. The raiding team, as pointed out
hereinabove, was well aware of the situation, in pursuance of the secret
information and had also made necessary preparations required in case of
recovery of contraband. In this scenario, taking into consideration the scheme
and the objective of Section 50 of the NDPS Act, the raiding team was
required to follow the procedure as per law. The said team cannot be
permitted, in the peculiar facts and circumstances of the case, to split the
search into two parts. It is not the case of the prosecution that the carry bag
was checked and opened before the applicant was apprehended. It is their case
that it was done in the presence of the applicant after informing him about the
secret information and asking passersby to join the police proceedings,
therefore, splitting the comprehensive search into two parts to justify not
giving a notice under Section 50 of the NDPS Act cannot be considered to be
just, fair and reasonable procedure and is therefore, impermissible in law.
24. At this stage, it is relevant to record that this Court, vide a judgment of
the same date, has disposed of BAIL APPLN. 1661/2022 titled „Sachin Arora
v. State Govt. NCT of Delhi‟, pertaining to FIR No. 69/2019 under Sections
21/25 of the NDPS Act registered at PS Crime Branch, wherein the case of
the prosecution is identical to the present case. In the said case too, the
comprehensive search was split into two parts, in the same manner, as has
been done in the present case.
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25. The applicant was released on interim bail on multiple occasions. The
applicant is stated to have duly surrendered each time. While he was on
interim bail, the applicant did not misuse his liberty. There is no complaint in
relation to him attempting to tamper with evidence, influence the witnesses or
getting involved in the commission of any similar offence. The present
applicant was arrested on 09.02.2019. As per the nominal roll dated
10.02.2023, he has been in custody for 02 years 08 months and 23 days.
26. In view of the facts and circumstances of the case, the application is
allowed.
27. The applicant is admitted to bail upon his furnishing a personal bond in
the sum of Rs. 1,00,000/- alongwith two sureties of like amount to the
satisfaction of the learned Trial Court/Link Court, further subject to the
following conditions:
i. The memo of parties shows that the applicant is residing at 878, TC
Camp, Raghubir Nagar, Delhi. In case of any change of address, the
applicant is directed to inform the same to the learned Trial Court and
the Investigating Officer.
ii. The applicant shall not leave India without the prior permission of the
learned Trial Court.
iii. The applicant is directed to give all his mobile numbers to the
Investigating Officer and keep them operational at all times.
iv. The applicant shall not, directly or indirectly, tamper with evidence or
try to influence the witnesses in any manner.
v. The applicant shall join the investigation, as and when required by the
Investigating Officer.
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vi. In case it is established that the applicant tried to tamper with the
evidence, the bail granted to the applicant shall stand cancelled
forthwith.
28. The application stands disposed of along with all the pending
application(s), if any.
29. Needless to state, nothing mentioned hereinabove is an opinion on the
merits of the case.
30. Let a copy of this judgment be communicated to the concerned Jail
Superintendent.
31. Judgment be uploaded on the website of this Court, forthwith.
AMIT SHARMA
JUDGE
AUGUST 17, 2023/bsr
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