Telangana High Court

Gaikwad Ganesh vs The State Of Telanagana on 23 January, 2023

Bench: Chillakur Sumalatha

     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

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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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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

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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)

(2019) 10 SCC 473

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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

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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

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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