Sheikh Mahboob vs The State Of Madhya Pradesh
2021 Latest Caselaw 7678 MP

                                                                      1                            MCRC-28835-2021
                                           The High Court Of Madhya Pradesh
                                                   MCRC No. 28835 of 2021
                                                    (SHEIKH MAHBOOB Vs THE STATE OF MADHYA PRADESH)


                                 Jabalpur, Dated : 23-11-2021
                                          Shri M.P. Tripathi, learned counsel for the applicant.

                                          Shri Sanjeev Kumar         Singh,   learned   Panel Lawyer       for   the
                                 respondent/State.

This is the second bail application filed by the applicant under Section 439 of the Cr.P.C. for grant of bail in connection with Crime No.990/2020 for

the offences punishable under Sections 8/20 of N.D.P.S. Act, registered at Police Station-Shahpur, District-Burhanpur. Earlier bail application was dismissed as withdrawn vide order dated 4.5.2021 passed in M.Cr.C. No.52270/2020.

T h e applicant is in judicial custody since 15.12.2020 in the aforementioned case. From the possession of the present applicant 10 kgs 300 gms Cannabi was seized and from other co-accused persons total 96 kg Cannabi has been seized by the Police.

It is submitted that the applicant has been falsely been implicated in the

case and has not committed any offence in any manner. The investigation is over and charge-sheet has already been filed in the matter. It is pointed out that there is total non-compliance of Section 50 of NDPS Act. The joint notice which was given to the present applicant alongwith other co-accused which are not permissible in the light of the judgment passed by the the Supreme Court in the case of State of Rajasthan Vs. Parmanand and another reported in (2014) 5 SCC 345.

It is argued that each of the accused persons had to be individually given the option of exercising their right to be searched by a Gazetted Officer. He has placed reliance upon the order passed by the co-ordinate bench of this Court in Subham Patel Vs. The State of M.P., M.Cr.C. No.20004/2021 decided on 24.11.2021 wherein considering the judgment passed by the Signature Not Verified SAN Hon'ble Supreme Court in the case o f Parmanand (supra) the bail Digitally signed by MOHD IRFAN SIDDIQUI Date: 2021.11.30 10:53:27 IST 2 MCRC-28835-2021 application was allowed. He has further relied upon the judgment passed by the Hon'ble Supreme Court in the case of Parmanand(supra) and has drawn attention of this Court to para 8 of the aforesaid judgment wherein it is categorically mentioned that the joint/common communication is not permissible. The same is contrary to the provision of Section 50 sub section

1 of the NDPS Act. he has further placed reliance upon the judgment passed by the Bombay High Court in the case of Miss. Henna Bharat Shah Vs. State of Maharashtra reported in 2017 SCC OnLine Bom 1396, wherein similar analogy was followed by Bombay High Court. He has prayed for similar relief to be extended to him.

Per contra, counsel appearing for the State has vehemently opposed the application that the aforesaid case law which has been relied upon by the counsel for the applicant is not applicable in the facts and circumstances of the present case. The information was given to the applicant regarding his search by a Gazetted Officer in terms of Section 50 of NDPS Act. A separate notice are being filed along with this application. Even the joint communications in writing were also given to the applicant/accused wherein their signatures and thumb impressions are also reflected which clearly goes to show that there is clearly compliance of Section 50 sub section 1 of NDPS Act. He has drawn attention of this court to Section 50 sub section 1 of the NDPS Act and has argued that the communication in writing is not required even if oral communication is their with respect to the information given to the accused/applicant that he has right to be searched by a Gazetted Officer then also the compliance of Section 50 of the NDPS Act is made out. In the present case, there is a written communication which has been duly signed by the applicant/accused in the matter, therefore, the case of Parmanand is not applicable in the present facts and circumstances of the case. A large quantity of contraband article has been recovered from the possession of the present applicant along with other co-accused persons. Therefore, no case for grant

Signature Not Verified SAN of bail is made out and prays for dismissal of the application.

Digitally signed by MOHD IRFAN SIDDIQUI Date: 2021.11.30 10:53:27 IST 3 MCRC-28835-2021 Heard the learned counsel for the parties and perused the record. From the perusal of the record, it is seen that on an information being received by the authorities the applicant/accused along with others were stopped for search. Some of the co-accused ran away and the present applicant along with others were found in possession of 5 bags containing contraband articles. They were informed regarding their rights to be examined before the Gazetted Officer in terms of Section 50 sub section 1 of the Act. The information was also giving in writing which was duly signed by them.

Section 50 of the NDPS 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 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 person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

1[(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 t h e possibility of the person to be searched parting with

Signature Not Verified SAN possession of any narcotic drug or psychotropic substance, or

Digitally signed by MOHD IRFAN SIDDIQUI Date: 2021.11.30 10:53:27 IST 4 MCRC-28835-2021 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.]"

From the perusal of the aforesaid, it is clearly seen that there is no necessity of giving a written information with respect to the rights of the accused. Merely given an information even on oral basis is sufficient.

In the case of Parmanand(supra) which is being heavily relied upon by the counsel for the applicant, this case is factually on different footing. In that case, the information was given in writing which was signed by one of the co-accused, therefore, the Hon'ble Supreme Court has taken a view that the information/communication signed in writing by one of the accused will not amount to information being given to the other co-accused regarding their rights to be examined by a Gazetted Officer, therefore, there was non- compliance of Section 50 of the NDPS Act. Where as in the present case the information was given in writing to all the accused persons which has duly signed by them. Thus, it cannot be said that no information was given to them. Even a joint information, if duly signed by the accused/applicant amounts to compliance of Section 50 of NDPS Act.

Counsel appearing for the applicant could not point out any prejudice being caused to the applicant/accused in case a joint information was given to him regarding his rights which was duly accepted and signed by them.

In such circumstances, as the law laid down by the Hon'ble Supreme Court in case of Parmanand (supra) is not applicable in the facts and circumstances of the case. No case for bail is made out.

Accordingly, the bail application is hereby rejected. Signature Not Verified SAN

Digitally signed by MOHD IRFAN SIDDIQUI Date: 2021.11.30 10:53:27 IST 5 MCRC-28835-2021 (VISHAL MISHRA) JUDGE irfan

Signature Not Verified SAN

Digitally signed by MOHD IRFAN SIDDIQUI Date: 2021.11.30 10:53:27 IST