16 Jan 2023 10:42 AM GMT
The Allahabad High Court has observed that at the stage of bail, it is only to be seen whether provisions of Section 50 of the NDPS Act have been prima facie complied with or not and it cannot be precisely ascertained whether compliance with Section 50 of the NDPS Act had been substantially made or not, as the same can only be ascertained during the trial.The bench of Justice Sameer Jain...
The Allahabad High Court has observed that at the stage of bail, it is only to be seen whether provisions of Section 50 of the NDPS Act have been prima facie complied with or not and it cannot be precisely ascertained whether compliance with Section 50 of the NDPS Act had been substantially made or not, as the same can only be ascertained during the trial.
The bench of Justice Sameer Jain observed thus while dealing with the plea of an NDPS Accused seeking bail on the ground that at the time of search and recovery, the mandatory provisions of Section 50 of the NDPS Act were not complied with.
The case in brief
It was the case of the accused, who was allegedly found in possession of 240 gms. of Alprazolam powder, that although the recovery memo states that an option was given to her to be searched either before a Gazetted Officer or a Magistrate, in fact, her counsel submitted, no such option was ever given to her.
It was further urged that in view of the Apex Court's ruling in the case of Arif Khan @ Agha Khan Vs. State of Uttarakhand, 2018 AIR (SC) 2123, it was imperative for the searching officer to produce the applicant before a Magistrate or Gazetted Officer and since the same had not been done, therefore, the entire recovery vitiates, thus, entitling the accused to bail.
On the other hand, the A.G.A submitted that before the search, the accused was in fact, given an option to be searched either before a Magistrate or a Gazetted Officer, however, as per the recovery memo, she did not opt for the same and stated that she may be searched by the Searching Officer and thereafter her search was made by two female police constables.
Thus, it was argued by the state that the provisions of Section 50 of the NDPS Act were duly complied with in its letter and spirit and, therefore, considering the non-obstante clause of Section 37 of the NDPS Act, the applicant should not be released on bail.
High Court's observations
At the outset, perusing Section 50 of the NDPS Act, the Court said that it is imperative on the part of the Searching Officer to take the accused before such an Officer, but if, even after giving the option to the accused, he does not opt to be searched either before a Magistrate or a Gazetted Officer then, the officer can make a search himself without taking the accused either before a Magistrate or a Gazetted Officer.
In this regard, the Court also relied upon the Supreme Court's rulings in the cases of the State of Punjab Vs. Baldev Singh (1999) 6 SCC 172 and Vijaysinh Chandubha Jadeja Vs. State of Gujarat (2011) 1 SCC 609 and further observed thus:
"...if in spite of appraising the right of accused he/she did not choose either to be searched before a Magistrate or a Gazetted Officer then search may be taken by the empowered officer and it is not imperative on his part to take the accused either before a Magistrate or a Gazetted Officer."
Significantly, the Court also relied upon the Delhi High Court's ruling in the case of Nabi Alam alias Abbas v. State (Govt Of Nct Of Delhi), wherein it was held that once a suspect under the NDPS Act is informed about his right to be searched before a Gazetted Officer/ Magistrate but he chooses not to exercise that right, then the empowered officer can conduct the search of such a suspect without producing him before a Gazetted Officer/ Magistrate, for the said purpose.
Read more about the Judgment here: S. 50 Of NDPS Act- Presence Of Magistrate During Search Of Contraband Articles Not Mandatory If Accused Waives His Right: Delhi High Court
Consequently, finding that before taking a search, the empowered officer apprised the accused that she is having a right to be searched either before a Magistrate or a Gazetted Officer but in spite of that she (applicant) did not opt for the same and with her consent, her search was made by two female police constables, therefore, the Court ruled, as per Vijaysinh Chandubha Jadeja case (supra), the empowered officer has complied the provisions of Section 50 of NDPS Act and it cannot be said that there is a violation of Section 50 of NDPS Act.
The Court added that at the stage of bail, it is only to see whether prima facie provisions of Section 50 of the NDPS Act have been complied with or not. With this, the bail plea was rejected.
About Section 50 of the NDPS Act
It may be noted that Section 50(1) of the NDPS Act states that when any officer duly authorized 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.
Section 50 NDPS Act suggests that it is the duty of the Investigating Officer to apprise the accused of his legal right that his search for the possession of narcotics, be conducted in the presence of the Magistrate or a Gazetted Officer, however, if the accused waives off this legal right or consents (be it oral or written) then in a such a case the Investigating officer can conduct his search for the same.
Counsel for Applicant: Vivek Sharma
Counsel for Opposite Party: G.A.
Case title - Neelam Devi vs. State of U.P. [CRIMINAL MISC. BAIL APPLICATION No. - 29318 of 2022]
Case Citation: 2023 LiveLaw (AB) 18
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