Aalam Khan vs State of Rajasthan - 2023 Supreme(Raj) 1955

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Raj) 1955

IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Farjand Ali, J.
Aalam Khan - Petitioner
Versus
State of Rajasthan – Respondent
S.B. Criminal Miscellaneous II Bail Application No. 1612 of 2023
Decided On : 08-02-2023

Advocates:
Advocate Appeared:
For the Petitioner: Mr. Bharat Yadav.
For the Respondent: Mr. B.L. Nasuna, PP.

Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 8/21 and 8/29 - Bail application - Second application for bail filed under Section 439 Cr.P.C concerning FIR No.361/2021 - Personal search conducted without notice under Section 50, rendering the search invalid as established in prior judicial precedents, specifically referring to Vijaysinh Chandubha Jadeja v. State of Gujarat - Co-accused released on bail due to non-commercial quantity of contraband. (Paras 1, 2, 5)

(B) Procedure for search and seizure - Mandatory notice under Section 50 of the NDPS Act required to be given prior to personal search, as affirmed by judicial interpretations. (Paras 2, 5)

Facts of the case:
The petitioner and others were intercepted while on a motorcycle; contraband of 255 grams smack was seized from the petitioner, leading to the bail application. The co-accused were granted bail since the quantity recovered was below commercial limits.

Findings of Court:
The court held that due to the absence of the required notice under Section 50 of the NDPS Act, the search was invalid, and thus bail was granted to the petitioner.

Issues: The primary issue was whether the search and seizure were valid in the absence of a notice under Section 50 of the NDPS Act.

Ratio Decidendi: The necessity of a notice under Section 50 of the NDPS Act prior to personal search was underscored, leading to the conclusion that the search lacked legal validity.

Result: Bail granted to the petitioner, conditional on furnishing a personal bond and sureties.

Table of Content
1. bail application based on contraband seizure details. (Para 1 , 2)
2. opposition to bail application by prosecution. (Para 3)
3. importance of notice under section 50 of ndps act. (Para 4 , 5)
4. bail granted with conditions. (Para 6)

ORDER :

Farjand Ali, J.

The instant second application for bail has been filed by the petitioner Aalam Khan S/o Shri Ajgar Khan under Section 439 Cr.P.C against the order impugned passed by learned court below in connection with FIR No.361/2021 registered at Police Station Nai Mandi, District Hindon for the offence(s) under Sections 8 /21 and 8/29 of the NDPS Act.

2. It is the story of prosecution that upon interception of a motorcycle, four persons were searched by the police team, namely (1) Trilok Sharma, (2) the petitioner Aalam Khan, (2) Aman Khan and (4) Tajuddin. It is alleged that contraband smack was found upon their personal search i.e., from their pocket of pant. The co-accused Trilok Sharma, Aman Khan and Tajuddin have been released on bail since the alleged recovered contraband from their possession was below the demarcated commercial quantity. As per the allegations, total 255 grams smack was seized upon the search of pocket of his pant. Since it was a personal search, therefore, a notice under Section 50 of the NDPS Act was required to be given as the same has been made mandatory provisions through plethora of judicial pronouncements, more particularly in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat reported in (2011) 1 SCC 609.

3. Per contra, learned Public Prosecutor vehemently and fervently opposed the bail application.

4. Heard and perused the material available on record.

5. It is an admitted position that no notice under Section 50 of the NDPS Act was given in this case. PW.1 Dinesh Chandra, the Police Inspector who conducted the search and seizure has been examined in the trial and he categorically admits in cross-examination that prior to making search, no notice under Section 50 of the NDPS Act was given to the accused nor any oral options were given to him. In this view of the matter, but without commenting on the merits, I deem it proper to allow the grant the instant bail application.

6. Accordingly, the instant second application for bail under Section 439 Cr.P.C. is allowed and it is ordered that the accused petitioner shall be enlarged on bail provided he furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial judge of his appearance before the court concerned on all the dates of hearing as and when called upon to do so.

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