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DELHI HIGH COURT
Anish Dayal, J.
Emeka Prince Lath – Petitioner
versus
State NCT of Delhi – Respondent
Bail Appln.2438 of 2024
Decided on 4.10.2024
Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 37 – Criminal Procedure Code, 1973 – Section 439 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 483] – Bail application – Petitioner seeking regular bail in FIR under Section 21 of Narcotic Drugs and Psychotropic Substances Act, 1985 and Sections 468/471 of Indian Penal Code, 1860 and Section 14 of Foreigners Act, 1946 – Language of statute has to be read in its plain and unambiguous manner and since Section 50 itself includes word ‘in person’, it would be construed strictly – When person being searched is asked to exercise option, they are effectively being told that since search is a body search, it can be before a Gazetted Officer or a Magistrate in order to obviate and avoid any suspicion of planting narcotics on the person – This conflates with principle of inviolability of personal space and privacy and sanctity thereof – Search was both of accused as well as of bag he was carrying but since nothing was recovered from his personal search, Section 50 would not apply – Bail on ground of undue delay in trial is unfettered by rigours by Section 37 NDPS where there is prolonged custody even in cases of commercial quantity – Seizures are made in all kinds of circumstances and they cannot be disbelieved merely on the basis that no independent witness was present – Threshold under Section 37 of NDPS Act has not been overcome by petitioner – If trial does not proceed expeditiously and there is prolonged custody, petitioner shall be at liberty to move a fresh bail application at a subsequent stage – Petition dismissed.(Paras 11.10, 11.11, 12.4,
14.2, 15.3, 18, 19 and 20)
Result: Petition dismissed.
JUDGMENT
Anish Dayal, J.—This petition is filed by the petitioner seeking regular bail in FIR No. 391/2022 under section 21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’) and Sections 468/471 Indian Penal Code, 1860 (‘IPC’) and Section 14 of The Foreigners Act, 1946 at PS Tilak Nagar. Petitioner is incarcerated since 8th April 2022. The APP states, on instructions, that out of 23 witnesses, 8 witnesses have been examined so far.
Factual Background
2. As per the case of the prosecution, on 7th April 2022, at about 11:45 PM, secret information was received regarding supply of heroin drugs at the office of the Narcotics Squad, West District, Tagore Garden. A raiding team was constituted that reached along with the secret informer at Gali No. 34, Sant Garh. At around 4:50 PM, petitioner was identified at the instance of the secret informer. On seeing the raiding team, the petitioner tried to escape from the spot i.e. Street No. 34, in front of House No. WZ-119A, Sant Garh, Tilak Nagar and threw one red colour pouch on the stairs of a house. He was apprehended by the police party; the suspected pouch was picked up and checked by their Field-Testing Kit and was found to have 602 gms of heroin in it. The recovered contraband was put in a plastic container and taken into police possession. The petitioner was briefed about his legal rights and notice under Section 50 NDPS Act was served. Nothing was recovered from his personal search. Later in the intervening night of 7th and 8th April of 2022 at 12:25 AM, present FIR was registered and petitioner was arrested at 3:10 AM.
3. On 8th April 2022, request under Section 52A(2) NDPS Act, for drawing of samples of seized narcotic drugs, was made before the Magistrate and inventory was made. Subsequently on 11th April 2022, sample of the seized drugs was deposited at FSL Rohini for expert opinion. The chargesheet was submitted and 8 out of 23 witnesses have been examined and the trial is proceeding ahead.
Submissions on behalf of the petitioner
4. Petitioner’s counsel made the following submissions, which can be categorized as under:
On the issue of recovery
4.1 The alleged recovery was from the red pouch on the stairs, thrown by the petitioner. It was submitted that it cannot be considered as recovery in absence of independent witnesses and no CCTV footage. The same was done in a public place with various nearby local shops; however, no independent witness was produced to support the case of the prosecution in this regard. Besides, there was no service of notice under Section 50 of NDPS Act before searching the alleged pouch. Judgment of Coordinate Bench in Bantu v State Govt of NCT of Delhi 2024:DHC:5006 was relied upon.
4.2 As regards the non-compliance of Section 50 of NDPS Act, reliance was placed on the decision of the Supreme Court in Union of India v Shah Alam & Anr. 2009 16 SCC 644 which involves the recovery of heroin and the Supreme Court held that it was in violation of the provision of Section 50 of NDPS Act on the ground that as per the seizure memo, the accused was subjected to a body search in course of which packets of heroin were found in shoulder bags carried by him. The Supreme Court relied on the principle that the search cannot be split up into two parts, Section 50 compliance being required for one and not for the other.
4.3 Petitioner’s counsel relied on the chargesheet where it was mentioned that, first the search was made of the pouch which had been thrown and thereafter, a personal search was conducted, for which notice under Section 50 of the NDPS Act was given, but nothing was found in the personal search nor in his house.
Delay in Trial
4.4 Petitioner’s counsel points out that petitioner has been incarcerated for 2 years and 4 months, and 8 out of 23 witnesses have been examined so far. Further, that conclusion of trial would take a long time. The petitioner has clean past antecedents and is entitled for bail on this account. Reliance was pla
Recovery of narcotics – Seizures are made in all kinds of circumstances and they cannot be disbelieved merely on the basis that no independent witness was present.
The mandatory nature of Section 50 of the NDPS Act and the importance of safeguarding the accused's rights were established in the judgment.
Procedural lapses in NDPS Act do not invalidate trials unless they cause serious prejudice; the right to a speedy trial under Article 21 is paramount.
Strict compliance with Section 50 NDPS Act is mandatory, and any violation of its provisions can lead to the vitiating of recovery and may be a ground for bail.
The mandatory requirements under Section 50 of the NDPS Act must be strictly followed to ensure an individual's rights during searches; failure to comply renders any recovery and subsequent convictio....
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 5....
The stringent bail conditions under the NDPS Act and the need for substantial probable causes to grant bail.
Non-compliance with the procedural requirements under Section 50 of NDPS Act is not applicable when contraband is recovered from a bag rather than a personal search.
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