The main legal point established in the judgment is the mandatory nature of compliance with Section 50 of the NDPS Act, especially regarding the search of females by female officers.

JUDGMENT

Manoj Kumar Ohri, J. - The present application has been filed under Section 439 Cr.P.C. read with Section 37 of the NDPS Act on behalf of the applicant seeking regular bail in FIR No. 312/2020 registered under Sections 21/61/85 of the NDPS Act at Police Station Budh Vihar, Delhi.

2. Learned counsel for the applicant submits that as per the prosecution case, a secret information was received at about 8:00 p.m. that the applicant, who was involved in selling of drugs, could be arrested. A raid team was organized and at about 9:15 p.m. when the applicant was allegedly getting down from an auto, she was identified by the secret informer and apprehended. A notice under Section 50 of the NDPS Act was given to her and on being searched by W/Ct. Rekha, 50.75 gms Smack was allegedly recovered from the possession of the applicant. Learned counsel has contended that the provisions of Section 50 of the NDPS Act were not strictly complied with in the present case. He submitted that the search of the applicant, admittedly conducted by W/Ct. Rekha, was in complete contravention of Section 50(4) of the NDPS Act and the alleged recovery being of 'intermediate quantity' in nature, the rigours of Section 37 of the NDPS Act are not applicable to the case.

3. It is also submitted that the applicant has been in judicial custody since 17.11.2020 and the charge sheet having been filed, the applicant is no longer required for the purpose of investigation. Learned counsel also submits that the applicant was granted interim bail by the Sessions Court for a period of 45 days vide order dated 16.12.2020 and for another period of 10 days vide order dated 01.07.2021, however, on account of misunderstanding as to whether the directions passed by the Supreme Court and the Full Bench of this Court with respect to continuation of interim bail orders would be applicable to the case of the applicant or not, the applicant did not surrender in time.

4. Learned APP for the State, on the other hand, has vehemently opposed the bail application. She submits that the search proceedings were conducted in presence of public witnesses as well as the ACP and SHO, Police Station Budh Vihar, Delhi. The seized substance was sent for examination to the FSL and as per the Report, it was found to contain 'Diacetylmorphine (22.6%), 'AcetyI codeine', 6-Monoacety imorphine' and 'Trimethoprim'.

5. It is further submitted that there was no violation of the provision under Section 50(4) of the NDPS Act and the same has to be interpreted in the fact-situation of the case. In the present case, the secret information was received at about 8:00 p.m. wherein, it was disclosed that the applicant was likely to come along with drugs and could be arrested. Due to the paucity of time, the raiding team had to immediately rush to the spot and for that reason no female police officer could join the raid/search proceedings. In support of her submissions, learned APP has relied upon the decision of the Supreme Court in Sajan Abraham v. State of Kerala reported as (2001) 6 SCC 692 as well as the decision of a Single Bench of the Kerala High Court in Amina v. Circle Inspector of Police reported as 2001 SCC OnLine Ker 266.

6. Learned APP has also submitted that the applicant has been found involved in two other cases being FIR No. 284/2010 registered under Sections 61/1/14 of the Punjab Excise Act and FIR No. 1000/2018 registered under Section 33 of the Delhi Excise Act at Police Station Mangol Puri, Delhi. It is further submitted that on account of her conduct during period of release, the applicant does not deserve the concession of bail inasmuch as she failed to surrender in time.

7. In rebuttal, learned counsel for the applicant submits that the applicant is already on bail in the aforesaid two cases registered under the Excise Act.

8. I have heard learned counsels for the parties and have also gone through the material placed on record.

9. The short issue raised in the present case is whether a fem