Compliance of Section 50 NDPS Act is required only when a person is searched and not the bag that he is carrying is searched. Entitlement to bail in NDPS cases is subject to meeting statutory and judicial thresholds.

JUDGMENT

Anish Dayal, J.

1. This petition has been filed seeking regular bail in FIR No.19/2019 under Sections 21/25/29 of the NDPS Act registered at PS Crime Branch. The petitioner has been in judicial custody since 30th January, 2019 and was found in possession of 280g of heroin which is a commercial quantity as per the scheduled ought to the NDPS Act. The minimum and maximum sentence which is prescribed for commercial quantity under the NDPS Act is 10 years and 20 years, respectively. In addition to a fine which shall be not less than Rs.1,00,000/- but may extend to Rs.2,00,000/-. The petitioner had preferred the regular Bail Appln. No.652/2020 before this Court and on 20th December, 2021 had moved an application to withdraw the same with liberty to file a fresh bail application before the Ld. Trial Court. Thereafter, a regular bail application was moved before the Ld. Trial Court but the same was dismissed vide order dated 24th March, 2022.

2. As per the case of the prosecution, on 30th January, 2019 the Narcotics Cell received secret information that a person, namely, Mohd. Iqbal resident of Alipur, Delhi is engaged in the supply of heroin in Delhi and NCR. As per the secret informer, it was disclosed that he would come near Nirmal Hriday Church on Ring Road from Majnu Ka Teela to Wazirabad, Delhi between 10:00 pm to 10:30 pm for delivery of heroin. The information was conveyed to senior officers, reduced in writing and a raiding team was constituted. At about 10:10 pm a Hyundai Accent Car bearing No. DL-9-CQ-6394 stopped near Nirmal Hriday Church and the driver of the car came out of the car meeting for someone. On the instance of the secret informer, Mohd. Iqbal, the petitioner was apprehended. A search of his red/cherry colour bag was conducted and 280g of heroin was recovered from the bag. The recovered heroin was seized after taking out samples as per the process. Notice under Section 50 NDPS Act was duly served upon him but he refused to avail his legal rights to be searched before any gazetted officer. On his personal search, nothing was recovered from his possession. Accordingly, the FIR was registered and the investigation was entrusted to SI Jai Prakash. The samples sent to FSL Rohini were checked and the report confirms the presence of diacetylmorphine in the samples. The investigation was completed and charge-sheet was filed and the trial is underway before the Special Judge, NDPS Act, Tis Hazari Courts, Delhi. The Ld. Trial Court on 02nd September, 2019 framed charges under Section 21/29 NDPS Act against the petitioner. The case is at the stage of prosecution evidence, 4 prosecution witnesses have been examined out of 16 and the trial is underway.

3. The learned counsel for the petitioner has contended in support of the petition that the petitioner was falsely implicated in the case since he was apprehended on the basis of secret information and no notice under Section 50 NDPS Act was served to the petitioner nor was he informed about his legal rights to be searched before checking his cherry colour bag from which 280g of heroin was recovered. The petitioner has relied upon the judgment of Akhilesh Bharti v. State, 2020 SCC OnLine Del 306, where a Coordinate Bench of this Court relied upon the judgment of the Hon'ble Supreme Court in Raju v. State of W.B., (2018) 9 SCC 708 where it was held as soon as the search of a person takes place compliance of Section 50 NDPS Act is mandatory. The petitioner is further relying upon the judgment of Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609, Arif Khan v. State of Uttarakhand, (2018) 18 SCC 380, State of Rajasthan v. Parmanand, (2014) 5 SCC 345, Kamruddin v. State (NCT of Delhi), 2022 SCC OnLine Del 3761, Emeka Emmanuel v. State, 2022 SCC OnLine Del 4493 with regard to the compliance of Section 50 NDPS Act. The petitioner is also relying upon the judgments titled Basanth Balram v. State of Kerala, 2019 SCC OnLine Ker 531, Surbir Singh v. Customs