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Tripura High Court

Shri Shambhu Paswan vs The State Of Tripura on 2 April, 2026

                      HIGH COURT OF TRIPURA
                           AGARTALA

                            B.A. No.53 of 2026

Shri Shambhu Paswan
son of Nageshwar Paswan, resident of 9,
Chakraka Tola Lagar, Timapur Inglish
Lagar, Gorgi, Lagar, Khagaria, Bihar, PIN-
851216
                                                  ......... Petitioner(s)
On behalf of:
Sri Rahul Chaudhary
son of Sri Ram Chalitra Choudhary,
resident of Gulzarbagh Mirchiyatola, P.S.
Alamganj, Patna, Bihar, PIN-800007
                                                  ...... Accused person(s)
                              -Versus-
The State of Tripura
                                                  ...... Respondent(s)

For the petitioner             :    Mr. S. Lodh, Adv.
For the respondent             :    Mr. R. Datta, P.P.
Date of hearing                :    24.03.2026
Date of delivery of
judgment and order             :    02.04.2026
                                      Yes    No
Whether fit for reporting      :
                                             ✔



             HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA
                            JUDGMENT & ORDER

This application praying for bail of the accused, Sri Rahul

Choudhary, is filed under Section 483 of the Bharatiya Nagarik Suraksha

Sanhita, (in short, BNSS) 2023 in connection with Amtali P.S. Case

No.2025 AMT 020 dated 27.02.2025 subsequently renumbered as

Special (NDPS) 100 of 2025 pending in the learned court of the Special

Judge, Court No.2, West Tripura, Agartala where charge-sheet is laid

under Sections 21(c)/25/29 of NDPS Act, 1985.

[2] Heard Mr. S. Lodh, learned counsel appearing for the

accused petitioner. Also heard Mr. R. Datta, learned Public Prosecutor,

appearing for respondent-State.

[3] The prosecution case is that on 27.02.2025, when the

informant, a Sub-Inspector of Police, while performing duty at bypass

road near Agartala Railway track area with other police personnel,

noticed that 6[six] persons were standing together besides the bypass

road, and 3[three] of them were having backpack with them. Seeing the

police, they tried to flee away but 4[four] of them were detained. On

asking, those detained persons disclosed that they were having Eskuf

syrups with them in two numbers of backpack and out of them, 3[three]

were minors in age. On getting information, Inspector, Sri Himadri Sarkar,

O/C of Amtali P.S. along with other police staff arrived there. Thereafter,

the informant along with other staff under the leadership of said

Inspector, Himadri Sarkar conducted search on the person of the said

detained persons and also the backpack, after obtaining their consent

under Section 50 of the NDPS Act, to cause search in presence of a

Gazetted officer i.e. in presence of Inspector, Himadri Sarkar who was

present at the spot and on search, from the backpack, total 50 nos. of

Eskuf syrups were recovered from the accused persons and further, 35

nos. of Eskuf syrups were also recovered from backpack of another co-

accused.

[4] Mr. S. Lodh, learned counsel appearing for the accused

petitioner submits that Section 50 of the NDPS Act was not complied with

in its true spirit rendering the search and seizure as well as the recovery

illegal. Learned counsel submits that securing presence of Inspector,

Himadri Sarkar, who is a Gazetted Officer, cannot be treated to be

compliance of Section 50 of the Act as he was the member of the search

party. Referring to the evidence of PW-2, learned counsel submits that

he was one of the witnesses, who signed in the notice, regarding

compliance of Section 50 of the Act but he has not stated anything about

compliance of such provision by the searching officer before the search

was conducted. Moreover, in the said notice, it was kept blank whether

the accused required or did not require that his personal search to be

conducted in presence of the nearest Gazetted Officer or Magistrate. For

better understanding, the relevant portion of the notice, where the

signature of the accused was taken containing his statement, is extracted

hereunder:

"I have been informed and have understood the Notice of Personal Search under section 50 of the NDPS Act, 1985. I require/do not require that my personal search may be conducted in presence of the nearest Gazetted Officer or Magistrate."

[5] Learned counsel also submits that for violation of Section 50

of the Act, the search and recovery have become vitiated and therefore,

rigour of Section 37 will not be applicable.

[6] Mr. Lodh, learned counsel in support of his contention, relies

on a decision in the case of Doniyar Vildanov vs. State of U.P., 2026

SCC OnLine SC 132, wherein at paragraph No.9, it was observed by the

Hon'ble Supreme Court that the sequence of events as spoken of by PW1

to PW3 clearly indicated that immediately on interception, the bag of the

accused was searched and the contraband was detected. The consent

letter was signed after said detection of contraband item was made. The

recovery of Mahazar did not indicate a bag in which the contraband item

was said to be smuggled. There were also inconsistencies in the evidence

of three important witnesses viz. PW-1 to PW-3. In such a situation, it was

held that the mandatory stipulation for search and seizure as per the NDPS

Act was not carried out in its letter and spirit and the appellant was

acquitted.

[7] Learned counsel also relies on a decision of Division Bench of

this Court in the case of Mithu Kumar and Another vs. State of Tripura,

2023 SCC OnLine Tri 302, wherein the prosecution case was that one

Inspector of Police along with staff found two persons with two trolley bags

trying to enter into the Agartala Railway station through the main gate in

suspicious manner. Thereafter, they were detained and after compliance of

furnishing notice under Section 50 of the Act, search was made in their

body as well as in the luggage and total 33 Kg. of ganja was recovered

from their trolley bags. In the said case also, notice was issued under

Section 50 of the Act but the police authority did not give the requisite tick

mark in the said statement portion of the accused contained in the notice in

the following line:

„I require/do not require that my personal search may be conducted...‟

[8] In that context, the Division Bench held that it was manifestly

absent that the accused had exercised the right of choosing whether they

required to be searched by a Gazetted Officer or Magistrate. Therefore,

Section 50 of the Act was not substantially complied with which vitiated the

conviction. In the said case, the Division Bench also make a reference of a

decision of the Hon'ble Supreme Court in the case of State of Rajasthan

vs. Parmanand, (2014) 5 SCC 345 and the relevant paragraph Nos.15

and 19 of the Parmanand (supra) as were extracted by the Division Bench

read as under:

"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 No.1 Parmanand‟s bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application.

*** *** ***

19. We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before a nearest gazetted officer or before PW-5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to a nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search would have been vitiated or not. But PW-10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated."

[9] Learned counsel, Mr. Lodh, while relying this judgment, gave

stress on his submission that even if the contraband items are recovered

from the bags and not from the accused person, still Section 50 of the Act

will be applicable when the police authority chooses to search both the

body as well as the bags of the accused and in the instant case, the same

is also found from the testimony of PW-2 to have been done.

[10] Learned counsel also relies on another decision of the Hon'ble

Supreme Court in the case of the State of Himachal Pradesh vs. Surat

Singh, Criminal Appeal No.96 of 2018, decided on 16.03.2026, wherein

the accused was found coming carrying red-gray coloured bag pack and

on suspicion, the police detained him and consent was taken from him in

terms of the provision of Section 50 of the Act and police also gave

personal search memo. From the bag pack, 11.50 kg charas was

recovered. In that contexts, the Hon'ble Supreme Court affirmed the

decision of the High Court acquitting the accused. High Court observed

that despite his personal search was carried out, the police had given

option to the accused either to be personally searched before the

Magistrate or the Gazetted Police Officer and another option was also

given to him whether he wanted to be searched by the Investigating Officer

in presence of witnesses, which according to the High Court, was violation

of Section 50 of the Act and as there was no third option as enumerated in

Section 50 of the Act to be searched before the police officer. Hon'ble

Supreme Court observed that High Court was justified in placing reliance

on Parmanand (supra).

[11] Lastly, learned counsel, Mr. Lodh, also to support his

submission, that the matter of non-compliance of Section 50 of the Act can

be taken note of while deciding the bail application, relies on a decision of

Rajasthan High Court in the case of Ganpat Singh vs. State of

Rajasthan through PP, S.B. Criminal Misc. 2nd Bail Application

No.9913 of 2024, decided on 06.09.2024, wherein learned Single Bench

observed that the seizure officer issued a notice in that case under Section

50 of the Act but failed to obtain an option from the accused regarding the

manner of search which prima-facie invalidated the search. According to

the said decision, the procedural non-compliance raised doubts about the

legality of the search since statutory rights of the accused were violated

and in essence, the procedural lapse undermined the legitimacy of the

evidence i.e. the contraband seized, making the case for bail stronger due

to likelihood of acquittal or a weakened prosecution. The High Court also

took note of the fact that the accused was in custody for around 11 months

and therefore, without going into the merits of the matter, it was further

observed that the rigour of Section 37 of the NDPS Act was dully satisfied

and therefore, the bail was granted. In said case, there was also defect

notice by the High Court regarding compliance of Section 52-A of NDPS

Act by the police authority.

[12] Mr. R. Datta, learned PP appearing for the State relies on

some judgments which are described hereunder, to buttress his contention

that the matter of scrutiny for violation of Section 50 of the Act cannot be

made during the bail hearing, rather it is a matter to be examined at trial.

Learned P.P also submits that when the contraband items were recovered

from the backpack, provision of Section 50 of the Act had no applicability.

Both the learned counsel, Mr. Lodh and learned P.P rely on a decision of

the Hon'ble Supreme Court (Constitution Bench) in the case of Vijaysinh

Chandubha Jadeja vs State of Gujarat, (2011) 1 SCC 609. Mr. Lodh,

learned counsel relies on paragraph No.29 of the said decision, whereas

Mr. Datta, learned PP, relies on the paragraph No.31 of the same. The

paragraph Nos.29, 30 and 31 of the said decision are also reproduced

hereunder:

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

30. As observed in Presidential Poll, In re, (1974) 2 SCC 33 :

"13...... 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.‟ "

31. 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 vs. State of Goa, (2000) 1 SCC 707 and Prabha Shankar Dubey vs. State of M.P., (2004) 2 SCC 56 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 State of Punjab vs. Baldev Singh, (1999) 6 SCC 172. 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.

[13] Learned P.P. relies on another recent decision of the Hon'ble

Supreme Court in the case of Narcotics Control Bureau vs. Mohit

Aggarwal, (2022) 18 SCC 374, wherein at paragraph No.19, it was

observed that the length of the period of custody of the accused or the fact

that the charge-sheet has been filed and the trial has commenced are by

themselves not considerations that can be treated as persuasive grounds

for granting relief to the respondent under Section 37 of the NDPS Act.

[14] Learned P.P also relies on another decision of the Hon'ble

Supreme Court in the case of State of Kerala vs. Prabhu, 2024 SCC

OnLine SC 5300, wherein at paragraph No.7, it was observed 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 if the recovery

was not from the person and rather from a bag carried by the accused, the

procedure formalities prescribed under Section 50 of the NDPS Act was

not required to be complied with.

[15] Learned P.P. also relies on a decision of the Hon'ble Supreme

Court in the case of Narcotics Control Bureau vs. Kashif, (2024) 11

SCC 372, wherein at paragraph No.50.5, it was observed that any

procedural irregularity or illegality found to have been committed in

conducting the search and seizure during the course of investigation or

thereafter, would by itself not make the entire evidence collected during the

course of investigation, inadmissible. The Court would have to consider all

the circumstances and find out whether any serious prejudice has been

caused to the accused. It was also observed in that context of that case

that any lapse or delay in compliance with Section 52-A by itself would

neither vitiate the trial nor would entitle the accused to be released on bail.

[16] In State of Tripura, represented by Ld. Public Prosecutor

vs. Mahabul Alam and others, 2023 SCC OnLine Tri 777 as further

referred by learned PP, at paragraph No.17, it was observed by a

Coordinate Bench of this Court that the courts while considering the

application for bail must strictly adhere to the two conditions embodied in

Section 37 of the NDPS Act, and must record its reason of satisfaction that

there are substantial probable causes for believing that the accused is not

guilty of committing such offence and there is no likelihood of repetition of

committing such offence by the accused while on bail. It was further

observed that the procedural violations, if any, shall be taken into

consideration during the course of trial, and not at the stage of

consideration of bail application. In said case, allegation was of violation

Section 42 of the NDPS Act by the police.

[17] Learned P.P, in support of his submission that alleged

violation of Section 50 of the Act can only be raised during trial, also relies

on another decision of the Hon'ble Supreme Court in the case of Union of

India, through Narcotics Control Bureau, Lucknow vs. Md. Nawaz

Khan, (2021) 10 SCC 100, wherein at paragraph No.33, it was observed

that the question of compliance and non-compliance of Section 42 of the

NDPS Act should be raised in the course of trial. It was also observed that

in said case the contention as raised regarding non-compliance of Section

42 of the NDPS Act was prima-facie misplaced.

[18] Lastly, learned P.P relies on a decision of the Allahabad High

Court in the case of Neelam Devi vs. State of U.P, Criminal Misc. Bail

Application No.29318 of 2022, decided on 05.01.2023. In that case at

paragraph No.20, the Allahabad High Court observed that it cannot be

precisely ascertained that whether compliance of Section 50 of the NDPS

Act has been substantially made or not, it can only be ascertained during

trial.

[19] The Allahabad High Court in this respect, relies on the

observation of Hon'ble Supreme Court in the case of Vijaysinh

Chandubha Jadeja (supra) as quoted earlier.

[20] This Court has considered the rival submissions of the parties

and has also gone through relevant materials placed in the record.

[21] The Constitution Bench In the case of State of Punjab vs.

Baldev Singh, (1999) 6 SCC 172, at paragraph No.25 observed that to be

searched before a Gazetted Officer or a Magistrate, if the suspect so

requires, is an extremely valuable right which the legislature has given to

the concerned person having regard to the grave consequences that may

entail the possession of illicit articles under the NDPS Act. It was also

observed therein that it is further not necessary to give the information to

the person to be searched about his right in writing. It is sufficient if such

information is communicated to the concerned person orally and as far as

possible in the presence of some independent and respectable persons

witnessing the arrest and search and the prosecution must, however, at

the trial, establish that the empowered officer had conveyed the

information to the concerned person of his right of being searched in the

presence of the Magistrate or a Gazetted Officer, at the time of the

intended search. The courts have to be satisfied at the trial of the case

about due compliance with the requirements provided in Section 50 of the

Act.

[22] Therefore, in view of the decision of Baldev Singh (supra)

and Vijaysinh Chandubha Jadeja (supra), the prosecution should get

scope during trial to establish whether searching officer had complied with

the provision of Section 50 of the NDPS Act. As per the decision of Md.

Nawaz Khan (supra), the compliance or non-compliance of Section 52 of

the NDPS Act should be raised in the course of trial. The Coordinate

Bench of this Court in Mahabul Alam (supra) also observed that the

procedural violation, if any, shall be taken into consideration during the

course of trial and not at the stage of consideration of bail application.

[23] Now, in the case in hand, On perusal of the notice, issued

under Section 50 of the NDPS Act by the searching officer to the present

accused person, it appears that he was informed about his legal right to be

searched in presence of the nearest Gazetted Officer or the Magistrate but

the reply of the accused was not noted down in the bottom of the said

notice giving tick mark in the relevant place, rather his signature was taken

therein. 2[two] persons, namely Pappu Shome and Constable, Litan Sarkar

put their signatures in the said notice as the witnesses and Md. Mamun

Ullah Kazi, SI of police also signed the same as searching officer. Said

Litan Sarkar has been examined in this case as PW-2 but he has not

stated anything regarding communication of the accused about his such

legal right. However, the witness, namely, Pappu Shome has not yet been

examined and he in his statement recorded under Section of the Cr.P.C.

he stated that the O/C of the police station after obtaining written

permission from the accused person, search was conducted. Said

searching officer, Md. Maman Ullah Kazi is also yet to be examined, who

had searched the bag of the accused.

[24] Therefore, it is not a proper stage to examine whether

compliance of Section 50 of the NDPS Act was necessary or not, in the

given facts of the present case and whether the said provision was

complied with by the searching officer or not. Charge has been framed in

this case against the accused by the learned Special Judge under Section

20(c) of the NDPS Act having found prima-facie materials against him in

respect of commercial quantity of Eskuf syrup.

[25] Considering all these aspects, this Court is not inclined to

grant bail to the accused person at this stage and accordingly, the bail

application is rejected.

With such observation and directions, this bail application is

disposed of.

Reconsign the records of the learned trial Court along with a

copy of this order immediately.

Pending application(s), if any, also stand disposed of.

JUDGE

SUJAY GHOSH Digitally signed by SUJAY GHOSH Date: 2026.04.02 16:18:00 +05'30'

Sujay