The court emphasized the limitations on granting bail under Section 37 of the NDPS Act, the definition of ganja under Section 2(iii)(b) of the NDPS Act, and the applicability of Section 50 of the NDPS Act to personal search.

JUDGMENT :

ARUN KUMAR TYAGI, J.

1. Petitioner-Ashok Kumar has filed CRM-M-12951-2020, petitioner-Danvir Singh has filed CRM-M-7998-2020 and petitioner- Bhim Singh has filed CRM-M-9957-2020 under Section 439 of the Code of Criminal Procedure, 1973 (for short, “the Cr.P.C.') for grant of regular bail in case FIR No.194 dated 27.07.2019 registered under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "the NDPS Act") at Police Station IMT Rohtak.

2. As per the prosecution version on 27.07.2019, the police party headed by ASI Pankaj was present in official vehicle for patrolling duty in the area of IMT Chowk, Rohtak. Secret information was received that accused Ashok Kumar (petitioner in CRM-M-12951-2020), Danvir Singh (petitioner in CRM-M-7998-2020) and Bhim Singh (petitioner in CRM-M-9957-2020), who were supplying intoxicants would come from Delhi to Rohtak in car No.HR-26-AD- 5275 with huge quantity of intoxicants and if the vehicle was searched the same could be recovered. Intimation under Section 42 of the NDPS Act was sent and written information was also sent through EHC Rakesh to Police Station IMT, Rohtak. ASI Pankaj also informed police officers about the said facts and started checking the vehicles coming from Delhi. Car No.HR-26-AD-5275 was stopped. Accused Bhim Singh was driving the car while accused Danvir was sitting on the codriver seat and accused Ashok Kumar was sitting on the rear seat. Notice under Section 50 of the NDPS Act was served on them informing them about their right to search of car in the presence of Gazetted Officer or Magistrate but the above said accused persons consented to search by ASI Pankaj. ASI Pankaj searched the car and recovered two plastic bags from dicky of the car. On weighing, both the bags were found to contain ganja patti weighing 16 kilograms 100 grams and 17 kilograms 400 grams respectively totaling 33 kilograms 500 grams. The car and the ganja patti were taken into possession by the police. Written information was sent to the police station for registration of the FIR with the request to send another investigating officer. The police arrested the petitioners and subsequently also arrested co-accused Dharmender in view of the disclosure statement of petitioner-Ashok Kumar and on completion of investigation chargesheeted them to face trial.

3. The petitioners being in custody have filed the present petitions for grant of regular bail.

4. The petitions have been contested by the respondent-State in terms of replies filed by way of affidavit of Narender Kumar, HPS, Deputy Superintendent of Police, Sampla, District Rohtak in CRM-M- 12951-2020 and CRM-M-7998-2020. However, no reply has been filed by respondent-State in CRM-M-9957-2020.

5. I have heard arguments addressed by learned Counsel for the petitioners and learned State Counsel and gone through the relevant record.

6. Learned Counsel for the petitioners have argued that the petitioners have been falsely implicated in the present case and have nothing to do with the alleged offence. In the present case mandatory provisions of Section 50 of the NDPS Act have not been complied with. ASI Pankaj gave joint notice to the petitioners informing them about their right to search of the car in the presence of Gazetted Officer or Magistrate but alleging giving of consent by the petitioners to search of the car by him, himself conducted the search of the car. Giving of joint notice to the petitioners regarding their right to search of the car in the presence of Gazetted Officer or Magistrate and also subsequent search of the car by ASI Pankaj on the basis of alleged consent of the petitioners was violative of mandatory provisions of Section 50 of the NDPS Act which vitiates the recovery and investigation and the petitioners are entitled to grant of concession of regular bail on this ground. In support of their arguments, learned Counsel for the petitioners have placed reliance on the observations in State of Rajast