The mandatory nature of Section 50 of the NDPS Act and the importance of safeguarding the accused's rights were established in the judgment.

JUDGMENT

Amit Sharma, J. The present application under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `CrPC') seeks regular bail in case FIR No. 29/2019 under Sections 21/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `NDPS Act') registered at PS Crime Branch.

2. Briefly stated, the facts of the present case, as stated in the chargesheet, are as under:

i. On 08.02.2019, at around 01:30 PM, an informer appeared at the Narcotics Cell Office and informed an Officer that a person, Vinay, i.e., the applicant, who resides at Raghuveer Nagar, supplies heroin in Delhi. The infomer stated that the said person, on that day, between 03:00 PM to 03:30 PM will supply a consignment of heroin to a person near Parmanand Special Surgery Hospital, Ring Road, Delhi.

ii. After receiving the said information, formalities under Section 42 of the NDPS Act were completed and a raiding party was organized. The said raiding party and the informer alongwith the Investigating Officer, a bag, a Field-Testing Kit and an electronic weighing machine left for the spot in a private car.

iii. After reaching the spot, the raiding party asked 5-6 passersby to join the raid, however, all of them gave reasons and disagreed to join, without disclosing their names and addresses.

iv. At around 03:15 PM, a person wearing a yellow and blue coloured jacket and a violet pant/lower, carrying a pink/white bag in his hand was seen coming from the ISBT Kashmere Gate side on foot. The said person was identified by the informer as Vinay, i.e., the present applicant.

v. The applicant then stopped at a spot near the Parmanand Special Surgery Hospital and stood on the road. He was looking around while waiting at the spot. After waiting for about 5 minutes, the applicant started returning towards ISBT Kashmere Gate. At that time, at around 03:20 PM, ASI Sudhir with the help of other staff tried to surround the applicant, however, on sensing police presence, the applicant threw the carry bag on the road and tried to flee. The applicant was apprehended by Head Constable Dharmender and Constable Shani and ASI Sudhir picked up the aforesaid carry bag.

vi. Thereafter, on interrogation, the name and parentage of the applicant was revealed. During this time, it is stated that the raiding team requested 4-5 persons who had gathered there on account of `curiosity' to join the police proceedings. However, on hearing about `drugs', none of the aforesaid persons agreed to join the said proceedings giving their reasons, and without disclosing their names. It is further stated that due to paucity of time, the names of the said persons could not be noted and neither any notice could be given to them. Thereafter, HC Dharmendra was directed to bring a private car. Thereafter, the raiding officer introduced himself and his team to the applicant and told him about the secret information. Thereafter, the carry bag which was held by the applicant and was thrown by him and was subsequently picked up by the raiding officer was checked. Upon checking, it was found to contain heavy plastic bag tied with an elastic band. On opening the same, a mathmaila (muddy) colored substance was found.

vii. After removing the band, the contents of the aforesaid heavy plastic bag were tested with the help of a field-testing kit and it tested positive for heroin. The substance weighed 500 grams on the electronic weighing machine. Two samples of 5 grams each were drawn and sealed. Similarly, the remaining 490 grams was sealed.

viii. It is alleged that thereafter, since there was a possibility of more recovery of contraband, SI again informed the applicant about the secret information and the applicant was served with a notice under Section 50 of the NDPS Act but he declined to be searched in the presence of a Gazetted Officer or a Magistrate. Personal search of the applicant was carried out but no contraband was recovered from his person.

ix. Accordingly,