Splitting Up 'Comprehensive' Search Of Person And Belongings Doesn't Justify Not Giving Notice To Accused U/S 50 NDPS Act: Delhi High Court

Observing that Section 50 of the NDPS Act will be attracted in case of 'comprehensive search' of belongings as well as personal search, the Delhi High Court has granted bail to a person accused of supplying heroin and apprehended under Sections 21 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) in 2019.

The bench of Justice Amit Sharma held,

“Section 50 of the NDPS Act will be attracted in case of a search of the black colored polythene (in which heroin was allegedly found) , as well as the personal search of the applicant. It cannot be said that notice under Section 50 of the NDPS Act was not required for the search of the polythene. It is pertinent to note that conscious possession of the said polythene is being attributed to the present applicant on account of the fact that as per the raiding party, he was holding the same in his hand. Apart from the said fact, there is no marking or identification which can connect the polythene with the applicant.”

According to the prosecution, a secret information was received that one Sachin Arora is involved in supplying Heroin. The raiding party reached the spot and upon seeing the police, Arora allegedly started running when the black polythene bag fell from his hand. Police picked up the polythene and allegedly found drugs weighing 300 grams.

Thereafter, a personal search was conducted on Arora by serving a notice under Section 50 [Conditions under which search of persons shall be conducted] of NDPS Act but he allegedly declined to be searched in the presence of a Gazetted Officer or a Magistrate. Personal search of the accused was carried out but no contraband was recovered from his person, submitted the prosecution.

The counsel appearing for accused contended that the prosecution had not complied with the mandatory provisions of Section 50 of the NDPS Act inasmuch as the black coloured polythene was searched before a notice under Section 50 of the NDPS Act was served upon him.

Prosecution argued that as far personal search is concerned, compliance with Section 50 of the NDPS Act is mandatory. However, it was submitted that the said provision is not attracted when the search is being conducted of something which a person is carrying, like in the present case, where the search was of a polythene that the applicant was carrying

Findings

Justice Sharma noted that the raiding team was well aware of the situation, in pursuance of the secret information and had also made necessary preparations required in case of recovery of contraband. In this scenario, taking into consideration the scheme and the objective of Section 50 of the NDPS Act, the raiding team was required to follow the procedure as per law, added the Court.

The Court said that the team cannot be permitted, in the peculiar facts and circumstances of the case, to split the search into two parts. It is not the case of the prosecution that the polythene was checked and opened before the applicant was apprehended, it said.

Adding that the raiding party contended that the search was done in the presence of the applicant after informing him about the secret information and asking passerby to join the police proceedings, the Court said, “therefore the comprehensive search into two parts to justly not giving a notice under Section 50 of the NDPS Act cannot be considered to be just. fair and reasonable procedure and is therefore, impermissible in law.”

Referring to Apex Court’s decision in State of Rajasthan v. Parmanand & Anr. (2014) the Court said, “Section 50 of the NDPS Act would be attracted in a case where the search of the person as well as a bag carried by the said person is conducted.”

Consequently, the Court granted bail to the accused stating, “Out of the 18 witnesses cited by the prosecution, only 05 have been examined so far and the trial is likely to take a long time. The present applicant was arrested on 23.03.2019. As per the nominal roll dated 05.04.2023, he has been in custody for 04 years and 05 days.”

Case Title: Sachin Arora v. State of GNCT of Delhi

Citation: 2023 LiveLaw (Del) 721

Appearance: Ajayinder Sangwan, Rohan Sharma, Mr. Smit Singh Kuru and Ambuj Johar, Advocates for petitioner.

Aman Usman, APP for State with SI Abdul Barkat.

Click here to read/download the order