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IN THE HIGH COURT OF DELHI AT NEW DELHI
Jasmeet Singh, J.
Mohd. Jabir – Appellant
Versus
State of NCT of Delhi – Respondent
Bail Appln. 1725 of 2022
Decided On : 28-03-2023
NDPS Act - Bail Application - Violation of Section 50 NDPS Act - Summary
Fact of the Case:
The applicant sought regular bail in a case involving the alleged possession and supply of heroin. The prosecution alleged that the applicant was caught receiving heroin from a co-accused. The trial court dismissed the bail application, citing the commercial quantity of drugs involved.
Finding of the Court:
The court analyzed the compliance of Section 50 NDPS Act, discrepancies in the secret information and the notice served, and violations of Sections 55 and 57 NDPS Act. The court found that the notice served under Section 50 was faulty and did not comply with the provisions of the NDPS Act. The court also considered the lack of independent witnesses and the importance of videography during search and seizure operations.
Ratio Decidendi: The court held that the notice served under Section 50 NDPS Act was faulty and did not comply with the provisions of the NDPS Act. The court also emphasized the importance of strict compliance with Section 50 and the need for independence and neutrality during search and seizure operations.
Final Decision: The court granted bail to the applicant, considering the non-compliance of Section 50 NDPS Act and the potential delay in the trial. The court imposed several conditions for the bail, including a personal bond, surrender of passport, and regular communication with the investigating officer.
JUDGMENT
Jasmeet Singh, J.
1. This is an application seeking regular bail in FIR bearing No.637/2020, U/s 21/29 NDPS Act, P.S. Bhalswa Dairy, Delhi dated 28.10.2020.
2. The facts of the case are that on 27.10.2020 at about 07:45 pm, SI Dilbag Singh at the Narcotic Cell's office in the Outer North District of Delhi received a secret information stating that one Wasim (co-accused herein) had previously bought heroin from one Rashid, who was a resident of Bareilly. He used to bring it to Delhi, and supply it to Mohd. Jabir (applicant herein), a resident of Bhalswa Dairy.
3. It was also stated in the secret information that on 27.10.2020, Jabir, the applicant herein, would come to Bhalswa Chowk in between 9:30 pm to 11:30 pm to take supply of heroin from Wasim and would go to Bhalswa Dairy after taking the same. Additionally, it was suggested in the secret information that both of them could be caught in the act if Nakabandi is done at Bhalswa Chowk.
4. The secret informer was produced before the Insp. Brij Pal Singh at his office at 08:00 pm who after satisfying himself, informed ACP/Operation/OND Sh. Rich Pal about the secret information. Sh Rich Pal received the same at 08:07 pm and instructed for raid to be conducted.
5. It is the case of the prosecution that the secret information was reduced into writing vide DD no.7 at 08:15 pm and the copy thereof handed over to Insp. Brij Pal Singh who forwarded the same to ACP/Operations/OND. Post this a raiding team was constituted by SI Dilbag Singh consisting of HC Sandeep NO.234/OLD, HC Pawan No.177/OND, Ct. Vinod No.1945/OND, Ct. Bishadev No.2434/OND and allegedly the raid was conducted.
6. At about 09:45 pm, one person was noticed coming on foot from the side of Outer Ring Road who crossed the bridge and was seen coming towards Nala Road, Bhalswa Chowk. He was carrying a black coloured bag on his back. The secret informer identified the said person as Wasim. Wasim after crossing the bridge, stopped and started waiting for someone. In the meantime, another person was also noticed coming from the side of Bhalswa Dairy on the Nala Road, who was identified by the secret informer as Jabir-applicant herein.
7. It is further the case of the prosecution that upon meeting with each other, Wasim took out a packet from inside his black coloured bag and handed it over to Jabir, , the applicant herein. It was at that point of time, at 09:55 pm, the police apprehended both of them. After enquiring their name and addresses, police identified one as Wasim S/o Chhote Khan R/o Village Laxmiyapur, Harvanshpur, PS Bhojipura, District Barelly, UP aged about 28 years and second as Mohd. Jabir (the applicant herein) S/o Matloob R/o D-1/764, J/ Colony, Bhalswa Dairy, Delhi aged about 32 years.
8. The prosecution further states that notices U/s 50 NDPS Act were served. Post which their replies were obtained on the body of their respective notices in their own hand writing. Thereafter ACP/Operation/Outer North Distt. was called at spot and in the presence of ACP/Operation their search was carried out. And 500 gm of heroin was recovered from each person separately.
9. Thereafter investigation was carried out and after completion of the investigation the charge sheet was filed against the applicant U/s 21/29 NDPS Act before the court of Sh. Gagandeep Singh, ASJ, North Distt., Rohini Courts, Delhi. Vide order dated 23.05.2022 charges U/s 21/29 NDPS Act were framed against the applicant. The matter is at the stage of the prosecution evidence.
10. The Trial Court was pleased to dismiss the regular bail application of the applicant vide order dated 06.05.2022, observing that the present case is related to the commercial quantity and therefore, the applicant is not entitled to be released on regular bail.
Submissions:
11. The Ld counsel for the applicant states that no option of personal search was given to the accused for his personal search in the presence of magistrate/gazette officer nor was search
Strict compliance with Section 50 NDPS Act is mandatory, and any violation of its provisions can lead to the vitiating of recovery and may be a ground for bail.
The mandatory nature of Section 50 of the NDPS Act and the importance of safeguarding the accused's rights were established in the judgment.
Recovery of narcotics – Seizures are made in all kinds of circumstances and they cannot be disbelieved merely on the basis that no independent witness was present.
The voluntary waiver of the right to be searched before a Gazetted Officer or Magistrate by the accused allowed the empowered officer to conduct the search without the presence of a Gazetted Officer ....
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