IMPORTANT POINT
Merely informing petitioner that he had rights under NDPS Act, without specifying what rights petitioner had under NDPS Act, would not constitute compliance with mandatory requirement under Section 50 sub-Section (1) NDPS Act.

JUDGMENT

B.S. Walia, J.—Prayer in the petition under Section 439 Cr.P.C. is for grant of regular bail to the petitioner in case FIR No.41 dated 22.01.2021 registered under Sections 21 and 25, NDPS Act, 1985 at Police Station Kundli, District Sonipat.

2. Sole argument of learned counsel for the petitioner is that although the alleged recovery from the petitioner, co accused Mukdar, Arvind, Vikas all of whom were travelling in a car, is of 523, 394, 20, and 803 grams respectively of powder alleged to be heroin, i.e. commercial quantity, since the petitioner was not informed of his right to be searched in the presence of a Gazetted Officer or a Magistrate if he so desired, therefore, there was non-compliance with Section 50 NDPS Act, consequentially, the bar under Section 37 NDPS Act would not apply, resultantly the petitioner is entitled to grant of bail during the pendency of the trial.

3. Per contra, Mr. Naveen Sheoran, learned DAG has referred to the notice u/S 50 NDPS Act (Annexure P/4) dated 22.01.2021 to contend that the petitioner was informed, of apprehension of the police that he had some intoxicating material / heroin with him, his rights, besides option to get his search conducted by a Magistrate or Gazetted Officer for which the said Officer could be called on the spot, therefore in the circumstances, there was due compliance with the mandate of Section 50 NDPS Act.

4. I have considered the submissions of learned counsel.

5. Hon’ble the Supreme Court in Vijay Chandubha Jadeja vs. State of Gujarat, 2010 (4) RCR (Crl.) 911 on account of divergence of opinion in the case of Joseph Fernandez v. State of Goa, (2000) 1 SCC 707 Prabha Shankar Dubey v. State of M.P., 2004(1) RCR (Criminal) 104 : 2004(2) Apex Criminal 54 : (2004) 2 SCC 56 on the one hand and Krishna Kanwar (Smt) alias Thakuraeen v. State of Rajasthan, (2004) 2 SCC 608 on the other, with regard to the dictum laid down by its the Constitution Bench in State of Punjab v. Baldev Singh, 1999(3) RCR (Criminal) 533 : (1999) 6 SCC 172 was pleased to consider the following question :-

“The short question arising for consideration in this batch of appeals is whether Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the Narcotic Drugs and Psychotropic Substances Act”) casts a duty on the empowered officer to ‘inform’ the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section?

6. Hon’ble the Supreme Court after considering the provisions of law as well as its various decisions held as under:-

“22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the Narcotic Drugs and Psychotropic Substances 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 subsection (1) of Section 50 of the Narcotic Drugs and Psychotropic Substances 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 provisio