Point of Law: It is imperative on part of police officer to apprise the person intended to be searched of his right under Section 50 of the NDPS Act to be searched only before a Gazetted Officer or a Magistrate.

JUDGMENT :

V.G. BISHT, J.

1. The present application has been moved by the applicant under Section 439 of the Code of Criminal Procedure in C.R. No. 625 of 2019 registered with Kondwa Police Station, Pune for the offences punishable under Sections 8(c) and 21(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’ for short).

2. It is the case of prosecution that while the informant and the staff members were on patrolling duty, they found a Nigerian national suspiciously wandering on the street with a sack bag on his shoulder. The applicant was, therefore, apprised of his right to be searched in front of a Gazetted Officer or a Magistrate in writing to which the applicant denied. In the presence of panchas, the sack bag was searched and the white powder and other stuff were recovered from the said sack bag. With the help of a drug detection kit the white powder was tested and it was found to be cocaine. It was about 201 gms in weight.

3. According to prosecution, when the applicant was asked to submit his passport, he informed that his passport was at his residence and accordingly the residence of applicant was also searched and he was found in possession of 534 gm of cocaine and other material. First Information Report (FIR) accordingly came to be registered.

4. Mr. Mishra, learned Counsel for the applicant, vehemently submits that there is total non compliance of mandatory provisions of Sections 42 and 50 of the NDPS Act. Therefore, the same has vitiated the prosecution case. This being so, the bar of Section 37 of the NDPS Act will not be applicable for want of compliance of said mandatory provisions of the NDPS Act. In such circumstances, the applicant deserves to be released on bail, argued learned Counsel. Learned Counsel for the applicant also placed reliance in Arif Khan alias Agha Khan vs. State of Uttarakhand, (2018) 18 SCC 380.

5. Mr. Dedhia, learned APP, on the other hand, opposed the submissions by contending that there was due compliance of provisions of the NDPS Act. There being no merit in the application, the same is liable to be rejected.

6. Perused the investigation Papers.

7. The short question which arise for consideration in the present Bail Application is, whether the search/recovery made by the informant from the applicant of alleged contraband (cocaine) can be held to be in accordance with procedure prescribed under Sections 42 and 50 of the NDPS Act. In other words, it is to be find out whether the prosecution was able to prove that the procedure prescribed under Section 50 of the NDPS Act was followed by the police officials in letter and spirit while making the search and recovery of contraband (cocaine) from the applicant.

8. Section 42 and 50 of the NDPS Act reads as under:

“42. Power of entry, search, seizure and arrest without warrant or authorization:

(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including paramilitary forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture u