Compliance with procedural safeguards under the NDPS Act is essential in narcotics cases; however, the lack of adherence does not automatically vitiate the recovery of contraband from premises.

JUDGMENT :

AJAY DIGPAUL, J.

1. The present bail application originates from the registration of FIR No. 174/2024, Police Station Narela, under Sections 21 /25/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, [Hereinafter “NDPS Act”]. The FIR was registered on 29.02.2024, upon receipt of specific intelligence received at approximately 12:55 PM by ASI Raj Kumar of the Narcotics Cell, Outer North District, Delhi, regarding the alleged transportation of heroin by two individuals, Amit and Ranjeet, via an e-rickshaw near Satyawadi Raja Harishchandra Hospital, Narela, [Hereinafter “SRHC Hospital”] Acting on this information, a raiding team was constituted, and surveillance was laid at the identified spot.

2. At about 02:35 PM on the same date, a red e-rickshaw bearing registration DL 10ER 4686 was intercepted, carrying the namedindividuals. Upon interception and following procedural formalities, a search was conducted, allegedly leading to the recovery of 300 grams of heroin from the accused. The applicant/petitioner, Shahida, was not present at the scene of the initial apprehension and was not named in the FIR or disclosed in the secret information. The case against her appears to stem from subsequent investigation and purported conspiracy under Sections 21 /25/29 of the NDPS Act.

3. The petitioner was arrested and taken into judicial custody on 02.03.2024.

4. Subsequently, the petitioner moved an application under Section 167 (2) of the Code of Criminal Procedure, 1973, [Hereinafter “CrPC”] on the ground that the alleged recovery of 30 grams of heroin (intermediate quantity) warranted the filing of a chargesheet within 60 days, which had not been complied with. This bail application was dismissed by the learned Trial Court on 20.06.2024.

5. Thereafter, the petitioner preferred a petition before the High Court under Section 167 (2) of the CrPC. However, it has been stated by the petitioner that during its pendency, the prosecution had filed the chargesheet. Thus, the petitioner withdrew the said petition with liberty to seek regular bail under Section 439 of the CrPC. Subsequently, she approached the learned Special Judge, NDPS, North District, Rohini Courts, which resulted in the dismissal of her bail application vide order dated 05.12.2024.

6. The instant bail application has been moved before this Court under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, [Hereinafter “ BNSS ”] seeking regular bail.

Submissions of petitioner

7. Learned counsel for the petitioner contends that the petitioner has been falsely implicated in the instant case and that she is neither named in the FIR dated nor apprehended from the spot at the time of the alleged recovery. The petitioner is alleged to have been roped in solely on the basis of a purported conspiracy under Section 29 of the NDPS Act, without any cogent, direct, or reliable evidence connecting her to the substantive offence under Section 21 or Section 25 .

8. The petitioner has submitted that the allegations against her, even if taken at face value, do not attract the rigor of Section 37 of the NDPS Act as the quantity allegedly recovered is 30 grams, which falls within the intermediate category and not the commercial threshold. It is argued that the procedural compliance, especially with respect to Section 50 of the NDPS Act, was wholly deficient.

9. The personal search of the petitioner was allegedly conducted by one W/HC Sheenu, who, it is contended, was neither an empowered officer nor authorized to conduct the search under Sections 41 and 42 of the NDPS Act.

10. Further, the mandatory notice under Section 50 NDPS Act offering the petitioner the option of being searched in the presence of a Magistrate or Gazetted Officer was not duly served, rendering the search and subsequent recovery vitiated in law.

11. Reliance has been placed on a catena of judgments including State of Delhi v. Ram Avtar,