Non-compliance with the mandatory procedure prescribed under Section 50 of the NDPS Act can lead to the grant of bail to the accused.

JUDGMENT

ORDER

1. The hearing has been conducted through video conferencing.

2. The present petition has been filed under section 439 Cr.P.C. seeking bail in pursuance to case FIR No. 124/17 registered at Police Station Crime Branch for the offences punishable under section 21/29 NDPS Act.

3. The brief facts of the case are that a Secret information came to the office of SI Vinod, Narcotics Cell on 27/07/2017 whereby informed that two people namely Nabi Alam (the present applicant) and Mohd Aakil are indulged into supply of heroine in Delhi which they get from Badaiyu/Bareli and even today they would be supplying a big consignment of heroine at around 2.00 pm to 2.30 pm near red light of Chanakya Place, Uttam Nagar. And if a raid is conducted on time, the accused persons could get caught while giving and taking heroine. Accordingly, a raid team was formed and the accused were apprehended. After a personal search of the accused Nabi Alam (present applicant), a polythene was recovered from the Pocket of the pant that he was wearing. Inside the polythene there was heroine weighting 250 gms. and like wise from, the other accused 50 gms. of heroine was recovered from his personal search from the pocket of the pant of the accused.

4. On the aforesaid basis , both the accused persons were arrested and booked under NDPS Act and are facing trial.

5. The present petition is filed on the ground that search/recovery made by the police officials from the applicant (accused) of the alleged contraband was not held in accordance with the procedure prescribed under Section 50 of NDPS Act. The prosecution has not followed the mandatory procedure prescribed under Section 50 of the NDPS Act while making search and recovery of the contraband "Heroine" from the applicant as the same was not done in the presence of a Magistrate or a Gazetted Officer so as to make the search and recovery of contraband "Heroine" from the applicant in conformity with the requirements of Section 50.

6. Learned counsel for the petitioner, in view of the above facts, has relied upon the case decided by Hon''ble Supreme Court in the case of Arif Khan @ Agha Khan vs. The State of Uttarakhand on 27.04.2018 whereby held as under:

"First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or Gazetted Officer; Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband "Charas" was not made from the appellant in the presence of any Magistrate or Gazetted Officer; Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband "Charas" from him, was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband "Charas" as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a Gazetted Officer; Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer."

7. Further relied upon the case of Sukhvir Singh vs. State of Punjab decided by Punjab and Haryana High Court on 02.05.2018 whereby held as under:

"In this case, the Applicant is stated to have been coming on foot when he was seen by a police party consisting of one ASI and two Head Constables, who stopped him and enquired about his particulars, and thereafter informed him that the ASI wish to search him, but that he could also opt to get his search conducted in the presence of any Magistrate or Gazetted Officer. Thereafter, the Applicant having agreed to a search by the ASI, and a consent memo having been shown to h