The central legal point established in the judgment is the non-satisfaction of the twin conditions under Section 37 of the NDPS Act for granting bail.

JUDGMENT

Manoj Kumar Ohri, J. - The present bail application has been filed under Section 439 Cr.P.C. read with Section 482 Cr.P.C. on behalf of the applicant seeking regular bail in FIR No. 38/2016 registered under Sections 21/29/61/85 of the NDPS Act at P.S. Special Cell (SB), Delhi.

2. Learned counsel for the applicant has contended that the applicant is in custody since 26.06.2016 and the charge sheet having been filed, he is no longer required for any investigation. She further submits that though the recovery of contraband is alleged to have taken place from the polythene bag held by the applicant, reading of the FIR would show that after searching the polythene bag, personal search of the applicant was also conducted and hence, Section 50 of the NDPS Act is applicable. It is also contended that there was violation in the present case of mandatory provision of Section 50 of the NDPS Act, as the applicants denial to be searched before a Magistrate or Gazetted Officer was not recorded. In support of her submissions, learned counsel placed reliance on the decisions of the Supreme Court in State of Rajasthan v. Parmanand & Another reported as (2014) 5 SCC 345 and Dilip and Another v. State of M.P. reported as (2007) 1 SCC 450.

Learned counsel further contended that the search and seizure in the present case were carried out in violation of Sections 41(2) and 42 of the NDPS Act, inasmuch as SI Sandeep Kumar was not an authorized person to conduct the same. In this regard, reliance is placed on DD No. 21 dated 23.06.2016. Lastly, it is submitted that till date, only 6 witnesses have been examined out of total 28 witnesses cited by the prosecution and the applicant is not involved in any other case.

3. Ms. Neelam Sharma, learned APP for the State, on the other hand, has vehemently opposed the bail application. She submits that the recovery effected from the applicant relates to commercial quantity of heroin and thus, the bar under Section 37 of the NDPS Act is applicable to the present case. She further submits that as the stated contraband was recovered from a bag and not from the body of the applicant, Section 50 of the NDPS Act is not applicable. She also submits that from the Reply given by the applicant to the notice issued to him under Section 50 of the NDPS Act, it can be inferred that he had waived off his right to be searched before a Magistrate/Gazetted Officer.

Learned APP further contends that there was no violation of Section 41(2) of the NDPS Act in the present case, as SI Sandeep Kumar was duly authorized by the concerned ACP to apprehend the accused persons and conduct their search and seizure. The information was recorded by SI Sandeep Kumar vide DD No. 21 and the same bears the endorsement of the concerned ACP. She also contended that the CDR of the applicant and other accused persons, along with transcripts, have been placed on record of the Trial Court and as per the FSL report, the voice sample of the present applicant has matched. In support of her submissions, learned APP placed reliance on the decisions in Durand Didier v. Chief Secretary, Union Territory of Goa reported as (1990) 1 SCC 95, State of Kerala and Others v. Rajesh and Others reported as (2020) 12 SCC 122 and Union of India through Narcotics Control Bureau, Lucknow v. Md. Nawaz Khan reported as 2021 SCC OnLine SC 782.

4. I have heard learned counsels for the parties and perused the material placed on record.

5. A reading of the FIR would show that mobile numbers of various persons, including the present applicant, were kept on surveillance and lawfully intercepted. During monitoring, it was revealed that one Ganesh Haldhar @ Mota Bhai, along with Manik Bishwas, used to bring heroin from West Bengal to Bareilly, U.P. and Delhi from one Sameer. The consignment used to be handed over to various persons, including the present applicant, Bhagwan Singh, Mujahid etc. in Bareilly, U.P., and other persons, including Islam, in U.P. and Delhi.

On 23.06.2016, a