Aabid Khan vs State Govt. of NCT of Delhi

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Del) 5728

IN THE HIGH COURT OF DELHI AT NEW DELHI
Amit Sharma, J.
Aabid Khan - Appellant
Versus
State Govt. Of NCT Of Delhi - Respondent
Bail Appln. 1156 of 2023
Decided On : 05-12-2023

Advocates appeared:
Mr. Aditya Aggarwal, Advocate, for the Appellant; Mr. Aman Usman, APP, SI Hanspreet Singh, ANTF, Crime Branch, for the Respondent.

Headnote:
NDPS Act - Bail Application - Section 439 CrPC - Section 36A(3) of NDPS Act - Sections 21/29 of NDPS Act - [50. Conditions under which search of persons shall be conducted.] - The court discussed the mandatory requirements of Section 50 of the NDPS Act and emphasized the importance of informing the accused of their right to be searched in the presence of the 'nearest' Gazetted Officer or Magistrate. The court referred to various judicial precedents and held that the word 'nearest' has been used in the statute with a certain intention and cannot be ignored by the investigating officer at the time of giving notice under Section 50 of the NDPS Act. The court also highlighted the mandatory nature of the right of the accused as contained in Section 50 of the NDPS Act, as emphasized in various judicial precedents. The court ultimately allowed the bail application based on the alleged non-compliance of Section 50 of the NDPS Act and the length of the applicant's judicial custody.
Fact of the Case:
The applicant sought regular bail in a case registered under Sections 21/29 of the NDPS Act. The primary ground for bail was the alleged non-compliance of Section 50 of the NDPS Act, which provides conditions for the search of persons. The applicant contended that the notice served upon him did not comply with the mandatory requirements of Section 50.
Finding of the Court:
The court examined the legal issues raised in the bail application, particularly the alleged non-compliance of Section 50 of the NDPS Act. The court emphasized the mandatory nature of the right of the accused as contained in Section 50 and referred to various judicial precedents to support its findings. Ultimately, the court allowed the bail application based on the alleged non-compliance of Section 50 of the NDPS Act and the length of the applicant's judicial custody.
Issues: The main issue was the alleged non-compliance of Section 50 of the NDPS Act, specifically regarding the right of the accused to be searched in the presence of the 'nearest' Gazetted Officer or Magistrate.
Ratio Decidendi: The court held that the word 'nearest' in Section 50 of the NDPS Act has been used with a certain intention and cannot be ignored by the investigating officer at the time of giving notice. The court emphasized the mandatory nature of the right of the accused as contained in Section 50, as supported by various judicial precedents.
Final Decision: The court allowed the bail application, admitting the applicant to bail upon certain conditions, based on the alleged non-compliance of Section 50 of the NDPS Act and the length of the applicant's judicial custody.

JUDGMENT

Amit Sharma, J. - The present application under Section 439 of the Code of Criminal Procedure, 1973 ('CrPC') read with Section 36A(3) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act') seeks regular bail in FIR No. 220/2021 under Sections 21/29 of the NDPS Act registered at PS Crime Branch.

2. The facts of the present case are as under:

i. On 11.11.2021, a team of police personnel was constituted to develop information on supply of drugs and persons involved. On the said date, at about 08:45 PM, when the police team was stationed near Bella Monde Farm House, Rang Puri, located at NH-8, a secret informer met with ASI Om Prakash and informed him that at about 10:00 PM to 10:30 PM, one person namely Aabid Khan (the applicant) who is involved in supply of heroin in Delhi would come near the Rajokri Flyover and if a raid is conducted he can be apprehended with a huge quantity of heroin.

ii. Acting on the said information, a raid was conducted and at 10:10 PM, a person wearing a blue colour t-shirt and light blue colour jeans was seen coming on foot carrying a yellow colour cloth carry bag. The said person was identified by the secret informer as the applicant.

iii. After a few minutes, when the applicant is about to leave, the police team apprehended him. He was informed about the secret information regarding his alleged involvement in supply of heroin and that there was a possibility of recovery of contraband from him.

iv. Thereafter, a notice under Section 50 of the NDPS Act served upon him and he was informed that he has the right to be produced before a Magistrate or a Gazzetted Officer prior to his search or such officer can be called to the spot and his search can be conducted in his/her presence. The applicant was further informed that it is also his right to search the police officers and the private car driven by them. The applicant declined to be searched in the presence of a Magistrate or a Gazzetted Officer.

v. Thereafter, a yellow colour carry bag was recovered from the applicant's right hand and was found to contain a muddy colour powder. On being tested with the field testing kit, the said powder was found to be heroin and weighed 400 gms.

vi. The content was seized and a seizure memo was drawn and accordingly, the present FIR was registered under Section 21 of the NDPS Act and the applicant was arrested on 12.11.2021.

vii. Upon completion of investigation, the chargesheet in the present case was filed for offences under Sections 21/29 of the NDPS Act.

3. Learned counsel appearing on behalf of the applicant submitted that the present applicant is entitled to bail on account of the non-compliance of the mandatory requirements of Section 50 of the NDPS Act, which provides as under:

"50. Conditions under which search of persons shall be conducted.-

(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the neare