The discretionary nature of Section 41, the mandatory compliance of Section 50, and the bar imposed by Section 37 of the NDPS Act.

JUDGMENT

Jasmeet Singh, J. - This is an application seeking grant of bail to the applicant/accused in FIR No. 06/2020 dated 04.01.2020, under Sections 15/25/29/61/85 NDPS Act, registered at Police Station-Tilak Nagar.

2. It is stated that the applicant-accused was found in possession of illicit drug 'Doda-Post' which was recovered by SI Vikas Sahu, HC Sandeep and Constable Manoj while they were patrolling the area. The applicant along with his brother i.e. co-accused Harjeet was found unloading katta from car bearing No. DL-4CND-8817 make i10. The total recovery of the substance was 58.5 kgs allegedly found in three kattas weighing 17.5 kgs, 22 kgs and 19 kgs respectively. It has been stated by Ms Sushma Sharma, learned counsel for Applicant, that in the present case there is non-compliance of mandatory provisions of Section 41 of the NDPS Act. She states that as per the respondent's case, the applicant and his brother were found at the time of patrolling around 07:15 a.m. The police personnel stopped the boys and on interrogation stated that the katta contained 'Doda-Post' i.e. poppy straw. The katta was checked and the SI informed the Inspector telephonically who gave orders for taking appropriate action. It was the SI who served the applicant and his brother with a notice under Section 50 of the NDPS Act.

3. It is argued that in the present case, the Inspector is not a Gazetted Officer nor the authority competent to grant authorization as per Section 41 of the NDPS Act. The ACP i.e., the Gazetted Officer nor the Magistrate under Section 41 of the NDPS Act ever authorized any officer for the purpose of search, seizure or arrest or investigate in the present case. It is further stated that the SI should have informed the Inspector and the ACP prior to opening of the Katta and only after due authorization, the process of search and seizure had to be followed.

4. It is also argued that there is an irregularity/illegality while issuing notice under Section 50 of the NDPS Act. The notice served to the applicant and his brother is illegal as the officer serving it was not authorized as per Sections 41, 42 or 43 of the NDPS Act. The applicant himself wanted to get searched before a Gazetted Officer or a Magistrate as per the notice under Section 50 of the NDPS Act where it is written 'main police staff ki talashi nahi lena chahta. Apni talaashi kisi rajpatrit Adhikari ke samne karwaana chahta hoon'.

5. It is further argued that the object of Section 50 is to check misuse of power and, failure to comply with the provisions of Section 50 would render the recovery of contraband otiose and vitiate the trial. Learned counsel for the applicant has relied upon the following judgments:

1 Arif Khan @ Agha Khan vs The State Of Uttarakhand on 27 April, 2018 Supreme Court of India'

2 The Hon'ble Delhi High Court judgement, titled as 'Dharambir v/s State, 13 November, 2018'

3 VijaysinhChandubha Jadeja vs State Of Gujarat on 29October, 2010

6. These are primarily the grounds on which the applicant has argued the bail application.

7. Per contra, Mr Gahalot, learned APP has stated that the present case is a case of chance recovery. He states that the recovery in the present case came to be made after the applicant and his brother were acting in a suspicious and wary manner on seeing the patrolling team. He states that the patrolling team did not have any prior knowledge or information as contemplated under Section 41 or 42 of the Act. He further states that in the present case there is no applicability of Section 41 of the NDPS Act as in the facts of the present case 'reason to believe or prior information' as envisaged under Section 41 of the NDPS Act were missing. There was no prior information or reason to believe in the present case and hence the rigours of Section 41 of the NDPS Act would not apply.

8. As regards Section 50 is concerned, it is stated that the provisions of Section 50 of the Act were duly complied with as personal search of the