Rajasthan High Court - Jodhpur

Madan Lal vs State Of Rajasthan (2025:Rj-Jd:880) on 7 January, 2025

Author: Manoj Kumar Garg

Bench: Manoj Kumar Garg

           [2025:RJ-JD:880]

              HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                               JODHPUR
                   S.B. Criminal Miscellaneous Bail Application No.
                                             11029/2024

           Madan Lal S/o Banshi Lal, Aged About 50 Years, R/o Near
           Warehouse Godown, Nokha, Ps Nokha, Teh. Nokha, Dist.
           Bikaner, Raj. (Lodged In Sub Jail Nokha)
                                                                            ----Petitioner
                                                  Versus
           State Of Rajasthan, Through Pp
                                                                          ----Respondent


           For Petitioner(s)             :    Mr. Manoj Choudhary
           For Respondent(s)             :    Smt. Sonu Manawat, PP
                                              Mr. Narendra Sehla
                                              Mr. Hansraj, Circle Inspector, P.S.
                                              Nokha, Bikaner



                  HON'BLE MR. JUSTICE MANOJ KUMAR GARG

Order

REPORTABLE 07/01/2025

The petitioner has been arrested in connection with FIR

No. 347/2024 of Police Station Nokha, District Bikaner for

the offence punishable under Sections 8/22, 29 of NDPS Act.

He has preferred this bail application under Section 483 of

Bhartiya Nagrik Suraksha Sanhita, 2023.

Counsel for the petitioner submits that no recovery has

been made from the conscious possession of the petitioner

and he has been falsely implicated in this case. Learned

counsel appearing on behalf of the petitioner submits that

recovery was effected in violation of mandatory provisions of

Section 50 of the NDPS Act. The petitioner was not given the

offer to be searched in the presence of a Gazetted Officer or

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a Magistrate. Sec. 50 of the NDPS Act requires that the

accused has to be given an option whether he would like to

be searched by a Gazetted Officer or by a Magistrate. These

two options have to be given. If these options are not given

then it would amount to non-compliance of the provisions of

the Act. Thus, there is a strong case for bail of the petitioner

as in absence of mandatory provisions of aforesaid section,

the alleged recovery itself becomes illegal. It is further

argued that the co-accused Sanwar Mal has already been

released on bail by this Court. The case of the petitioner is

not distinguishable and therefore, the petitioner may also be

enlarged on bail.

Per contra, learned Public Prosecutor vehemently

opposed the bail application and argued that contraband

recovered from the applicant falls within the ambit of

commercial quantity and the bar as contained in Section 37

of the NDPS Act is attracted. He further submits that so far

as compliance of Section 50 of the NDPS Act is concerned,

the same cannot be considered at this stage and shall be

decided during trial only. The accused also has a criminal

history with sixteen cases lodged against him for various

offences, therefore, bail should not be granted to the

petitioner.

I have considered the arguments advanced before me

and carefully gone through the record.

The main argument of counsel for the petitioner is that

the mandatory provision of Section 50 of NDPS Act has not

been complied with, which renders the entire seizure and

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recovery as illegal. This court dwelved into the fact whether

the mandatory provisions of Section 50 of the NDPS were

complied with or not. Section 50 of the NDPS Act, 1950,

requires options to be given to the person being searched; in

fact an affirmative option is to be exercised for the search

being conducted before the nearest gazetted

Officer/Magistrate. Therefore, the provision casts a duty

upon the investigating officer to intimate the accused of his

rights including the vital right to be searched before a

Magistrate or a gazetted officer. Therefore, the provisions of

Section 50 of the NDPS Act are mandatory.

On perusal of the record, this Court failed to find that

the petitioner was given the notice under Section 50 of the

NDPS Act. On last date of hearing, this court had called the

Seizure officer, who is present in Court today. According to

the Seizure officer, the petitioner was not given notice or

informed about any search options available to him or his

legal rights.

Hon'ble Supreme Court in the case of State of Kerala

Vs. Prabhu (Criminal Appeal No. 3434/2024) decided

on 20.08.2024 while considering this aspect of matter has

observed as under :-

"7. Thus, it is evident that the exposition of law on the question regarding the requirement of compliance with Section 50 of the NDPS Act is no more res integra and this Court in unambiguous term held that if the recovery was not from the person and whereas from a bag

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carried by him, the procedure formalities prescribed under Section 50 of the NDPS Act was not required to be complied with. It is to be noted that in the case on hand also the evidence indisputably established that the recovery of the contraband was from the bag which was being carried by the respondent."

In the present case, the recovery was from the person

and therefore, as per observations made by the Hon'ble

Apex Court in the case of Prabhu (Supra), the procedure

formalities prescribed under Section 50 of the NDPS Act was

required to be complied with.

Hon'ble Allahabad High Court in the case of 'Ikrar and

another vs Union of India' (Criminal Appeal

No.985/2002) decided on 26.07.2024, while considering

this aspect of matter, has observed as under :-

"21. Severe punishment has been provided in the N.D.P.S. Act to check the misuse of this Act by the police personnel or officers and certain safeguards particularly Section 50 of N.D.P.S. Act has been incorporated in this Act that search of the suspected person must be done before the Magistrate or Gazetted Officer.

22. Hon'ble Supreme Court in Vijaysinh Chandubha Jadeja Vs. State of Gujarat, 2010 (2) EFR 755, while discussing the importance and relevancy of section 50 of N.D.P.S. Act, in para- 22, has opined as under:-

"22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the

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suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate.

We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed in Re Presidential Poll (1974) 2 SCC 33, it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole."

We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev

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Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well."

27. Section 50 of the N.D.P.S. Act mandates that the accused must be informed of their right to be searched in the presence of a Gazetted Officer or a Magistrate. This is a crucial safeguard to ensure the fairness of the search process and to protect the rights of the accused. In this case, there is clear non-compliance with this mandatory provision, rendering the search and subsequent seizure legally flawed. The prosecution's failure to adhere to this statutory requirement further weakens its case.

Hon'ble Delhi High Court in the case of Mohd. Jabir

Vs State of NCT of Delhi Reported in 2023 3 JCC 1497

while considering the bail application has observed as

under:-

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"60. Hence as has been held by the above judgment, section 50 is to be mandatorily complied. There is no concept of substantial compliance. In the present case, conditions under section 50 have been violated and the procedure established has not been followed.

The same give rise to reasonable grounds for granting bail.

64. Therefore in my considered opinion, the basic requirements of Section 50 of the NDPS Act not having been complied with in the instant case, in view of which, I am satisfied rigours of section 37 would not be an obstacle in the release of the applicant."

Hon'ble Delhi High Court in the case of Vinay Vs State

of NCT of Delhi Reported in 2023 Supreme (Del) 3945

has observed as under:-

"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 the Act is confined to "personal search" and not to search of a vehicle or a container or premises."

The Co-ordinate Bench of this court in the case of

Rajesh Vs. State of Rajasthan in S.B. Criminal Misc.

Fourth Bail Application No.16400/2023 decided on

07.03.2024 while granting bail, has observed as under:-

"5. It is the case of the prosecution that the petitioner was arrested by the police on 18.05.2021 for the allegation that he was having

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90 gms MDMA, which is a psychotropic substance and 50 gms and more of which falls within the commercial quantity. Admittedly, the alleged recovery was made from the personal search of the petitioner. As per the allegation, MDMA was found in the right pocket of half-pant and thus, it was a case of personal search. It is also admitted by the prosecution that no notice under Section 50 of the NDPS Act was given to the petitioner which is manifesting from the seizure memo itself and the same has further been verified by Kanhiya Lal P.W. 1 when he was examined in trial and subjected to cross examination. In an unequivocal terms, at Page No.6 of his cross examination, he admitted that prior to making search and seizure, no notice under Section 50 of the NDPS Act was given to the accused.

6. As per the mandate contained under Section 50 of the NDPS Act, before making personal search on a person, a prior notice of Section 50 is required to be given to the accused. However, in the case at hand, admittedly, no such notice was given to the accused before making search of pocket of the accused. Nor giving mandatory notice before affecting bodily search vitiates the procedure and the recovery. When a power is vested in someone to do a certain thing in a certain manner; the thing must be done in that way only nor not at all and that the other methods of performance are necessarily forbidden. It does not matter that the accused was having possession of contraband which was recovered by the police officer, it has to be recovered as envisaged under the Statute. When the law has prescribed a particular mode of

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search and seizure then any deviation from it is not permissible. Here is the question of curtailment of the liberty of an individual. Article 21 of the Constitution of India guarantees that no person shall be deprived of his right to life and liberty except in accordance with the procedure established by law. Present is a case where the liberty of an individual has been curtailed but not through the procedure established by law and thus in my firm opinion, the alleged action of the police officer is unconstitutional for being a direct infringement of fundamental right of the accused.

7. The law in this regard is no more re-integra that the compliance of Section 50 of the NDPS Act is mandatory and any seizure dehors to the procedure laid down; makes the entire recovery unlawful."

Similarly, the Co-ordinate Bench of this court in the

case of Amrik Singh @ Amrik dutt Vs. State of

Rajasthan (S.B. Criminal Misc. Third Bail Application

No.16317/2023) decided on 15.03.2024 observed as

follows :-

"5. It is the case of the prosecution that on 12.11.2021, the SHO Lakhveer Singh along with his team apprehended the petitioner Amrik Singh. The apprehension was made in a public place on a moving road, however, no independent witness has been made rather only the subordinate employees of the SHO were made the witnesses of the memos. It is an admitted situation that a personal search of the accused was made whereupon 490 gms smack

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was recovered from him. Admittedly, before making personal search, the notice under Section 50 of the NDPS Act was not given to the accused. As per settled legal position, before making a bodily search and personal search, a notice under Section 50 of the NDPS Act should be given and the same is mandatory provision".

Hon'ble Madhya Pradesh High Court in Ramesh

Meena Vs State Of M.P. reported in 2020 Supreme

(MP) 374 has observed as under:-

24. We do not agree to this finding of the two Courts below as, in our opinion, a search and recovery made from the appellant of the alleged contraband 'Charas' does not saTIsfy the mandatory requirements of Section 50 as held by this Court in the case of Vijaysinh Chandubha Jadeja (supra). This we say for the following reasons.

24.1 First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or Gazetted Officer;

24.2 Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband 'Charas' was not made from the appellant in the presence of any Magistrate or Gazetted Officer;

24.3 Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband 'Charas' from him, was the Gazetted Officer and nor they could be and,

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therefore, they were not empowered to make search and recovery from the appellant of the contraband 'Charas' as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a Gazetted Officer;

24.4 Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer.

26. For the aforementioned reasons, we are of the considered opinion that the prosecution was not able to prove that the search and recovery of the contraband (Charas) made from the appellant was in accordance with the procedure prescribed under Section 50 of the NDPS Act. Since the non-

compliance of the mandatory procedure prescribed under Section 50 of the NDPS Act is fatal to the prosecution case and, in this case, we have found that the prosecution has failed to prove the compliance as required in law, the appellant is entitled to claim its benefit to seek his acquittal."

Hon'ble Punjab and Haryana High Court in the case of

'Sunil and State of Haryana (CRM-M No. 28067/2021)

decided on 02.11.2021 while allowing the bail application,

has observed as under:-

"10......The mandatory requirement under Section 50(1) NDPS Act not having been complied with and the punishment provided for an offence under the NDPS Act being very stringent, failure to comply with Section 50

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NDPS Act renders the recovery of the illicit article suspect. It is also not the stand of the prosecution that the petitioner is a person with criminal antecedents or that he is involved in similar offences earlier. Since, the requirement under Section 50 NDPS Act is not merely a technical breach, and the petitioner is not involved in any other case under the NDPS, therefore, in the circumstances, in view of the position as noted above, for the limited purposes of the instant petition, it can safely be recorded that this Court is satisfied that there are reasonable grounds to believe that the petitioner is not guilty of such offence and that he is not likely to commit any such offence while on bail.

11. The petitioner is in custody since 21.01.2021, there has been non compliance with Section 50 (1) NDPS Act, investigation is complete, besides Challan has been presented. Accordingly, taking into account the position as noted above, the petition for regular bail is allowed and the petitioner - Sunil is ordered to be released on regular bail during the pendency of the trial on his furnishing bail bond and surety bond to the satisfaction of the learned trial Court / Chief Judicial Magistrate / Duty Magistrate concerned, provided he is not required in any other case. The petitioner shall also comply with the conditions contained in Section 437(3) Cr.P.C. However, nothing stated hereinabove shall be construed as an expression of opinion on the merits of the case."

Having regard to the totality of the fact and

circumstances of the case, more particularly the fact that the

provisions of Section 50(1) of the NDPS Act has not been

complied with and that the challan has already been

presented, without expressing any opinion on the merits of

the case, I deem it just and proper to grant bail to the

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petitioner under Section 483 B.N.S. So far as the criminal

cases lodged against the petitioner are concerned, it is

informed that in six cases, the petitioner has been acquitted

and none of the criminal cases relate to offence under NDPS

Act.