BA1/1502/2020
2022 Latest Caselaw 1942 UK

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                                  BA1 No.1502 of 2020
                                  Hon'ble R.C. Khulbe, J.

Mr. Mukesh Rawat, learned counsel holding brief of Mr. Kartikey Hari Gupta, learned counsel for the applicant.

Mr. S. S. Adhikari learned Dy. A. G. assisted by Mr. Balvinder Singh learned B.H. for the State.

Mr. Shobhit Saharia, learned counsel for the NCB.

Accused-Ashish, who is in judicial custody in connection with NDPS Case No.01 of 2019 NCB Crime No.III/NCB/ DDN/Seize/01/2019, u/s 8/22/27/29 of The Narcotic Drugs and Psychotropic Substances Act, 1985, registered at P.S. N.C.B. Zone, Distt. Dehradun.

As per the complaint filed by the NCB before the Competent Court, it was mentioned that on 26.07.2019 at about 11:30 A.M, a secret information was received by Rajesh Kumar Yadav that the accused was supposed to sell huge quantity of injections; on the basis of said information, a team was constituted comprising Intelligence Officer Hemant Kukreti and other persons; they reached on the very same day at about 12:45 P.M to Premnagar, Nehar Road, Dehradun and apprehended the accused; after interrogation, the accused disclosed that he is carrying narcotics drugs; accordingly, the N. C. B. Team conveyed the message to the Superintendent of Police, who reached at the spot; accordingly, search was conducted and the narcotic drugs were recovered.

It is argued by learned counsel for the accused that the N. C. B. Team had a prior information, in spite of that, they did not note down the secret information nor did they inform their Superior Officers as envisaged u/s 42 of the N. D. P. S Act; he also argued that since the NCB Team had a prior information about the accused, in spite of that, they did not comply with the provisions of Section 50 of the N. D. P. S Act, which is mandatory in nature; even the search was conducted by Rajesh Kumar Yadav, who was the member of the team; he had no right to take search of the accused, as he was not a gazetted officer; accordingly, the accused is entitled for bail as per the law laid down by the Hon'ble Apex Court in State of Rajasthan Vs. Parmanand and Another (2014), 5 SCC 345.

Per contra, learned counsel for the NCB opposed for bail.

Admittedly, as per the complaint, Rajesh Kumar Yadav, Intelligence Officer of the NCB,

received prior information regarding the contraband.

The learned counsel for the NCB produced documents during the course of arguments; from those documents, prima facie it is clear that a secret information, received by Rajesh Kumar Yadav, was noted down in Form NCB-1 on 26.07.2019.

As regards the information given to the higher officer as per Section 42 of the Act is concerned, from a perusal of the complaint, it appears that Mr. Rajesh Kumar Yadav conveyed the message to Smt. Chanda, who is the Superintendent and a Higher Officer in Rank.

From a perusal of the documents produced on behalf of the NCB, prima facie, it is clear that Smt. Chanda, Superintendent, NCB was informed by Rajesh Kumar Yadav.

Now as regards to the presence of Smt. Chanda, who is the Superintendent of the NCB at the spot, is concerned, as per the complaint, after receiving information by Rajesh Kumar Yadav, she reached at the spot and a search was conducted in her presence. From a perusal of the seizure memo it is, prima facie, clear that the search was carried out in her presence on 26.07.2019; after arresting the accused, the NCB Team produced the accused before the concerned

Special Judge, NDPS Act Dehradun, on 27.07.2019; the seal and signature of the Presiding Judge is on record.

Moreover, Form NCB-1, Notice u/s 50 of NDPS Act, 1985 and Compliance Memo for Section 50 have also been brought on record.

Now, as regards the compliance of Section 50 of NDPS Act is concerned, the Hon'ble Apex Court, in a catena of judgments, has held out that if narcotics drugs is recovered from a bag or scooter and not from the personal search, in that situation, compliance of Section 50 of the NDPS Act is not necessary.

However, in the present matter, as per the recovery memo, the narcotics drugs were recovered from the bag and not from the personal search of the accused. The aforesaid narcotics drugs recovered from the accused certainly falls within the definition of commercial quantity.

Looking to the gravity of offence and considering the aforesaid facts, it is not a fit case to grant bail to the applicant at this stage.

The bail application is, hereby, dismissed. Pending application, if any, stands disposed of.

(R.C. Khulbe, J.) 01.07.2022 R.Bisht