JUDGMENT :

[Sameer Jain, J.]

1. Heard Sri Vivek Sharma, learned counsel for the applicant and Sri Ravi Kant Kushwaha, learned A.G.A. for the State.

2. The instant bail applicant has been moved on behalf of applicant to release him on bail during trial in Case Crime No. 608 of 2022 under Section 21/22 of NDPS Act, Police Station- Highway, District- Mathura.

3. According to the prosecution case on 3.6.2022 at about 10:29 A.M. from the possession of the applicant 240 gms. of Alprazolam powder was recovered.

4. Learned counsel for the applicant submits that entire allegation made against the applicant is totally false and baseless and nothing incriminating has been recovered from the possession of applicant.

4.1 He next submitted that even at the time of search and recovery mandatory provisions of Section 50 of NDPS Act have not been complied.

4.2. He submits, although from the perusal of the recovery memo, it appears that an option was given to the applicant that if she wants, she may give her search either before a Gazetted Officer or a Magistrate but in fact no such option was ever given to the applicant and only with intention to show the compliance of Section 50 of NDPS Act, it has been noted in the recovery memo.

4.3 He further submits, even in view of the judgment of Apex Court passed in case of Arif Khan @ Agha Khan Vs. State of Uttarakhand, 2018 AIR (SC) 2123 no compliance of Section 50 of NDPS Act at the time of search was made as indisputedly applicant did not either produce before Magistrate or Gazetted Officer and her search was made by the police personnel at alleged spot of recovery.

4.4. Learned counsel for the applicant urged that in view of the law laid down in case of Arif Khan (Supra), it was imperative for searching officer to produce applicant before a Magistrate or Gazetted Officer which is not done in the present matter and, therefore, considering the fact that mandatory provisions of Section 50 of NDPS Act have not been complied with entire recovery vitiates.

4.5. Learned counsel also placed reliance on the judgement and order passed by this court in Criminal Misc. Bail Application No. 27291 of 2020 Mohd. Asageer Vs. NCB.

4.6. Learned counsel for the applicant further submits, applicant is a lady and she is not having any criminal history and she is in jail in the present matter since 03.06.2022 i.e. for last more than six months and, therefore, considering the facts and circumstances of the case and detention of applicant she should be released on bail.

5. Per contra, learned A.G.A opposed the prayer for bail and submits that from the possession of the applicant 240 gms. of Alprazolam powder was recovered which involves commercial quantity as commercial quantity of Alprazolam powder is only 100 gms.

6. Learned A.G.A further submits that before search an option was given to the applicant that if she wants then she may be searched either before a Magistrate or a Gazetted Officer and from the perusal of the recovery memo it further reflects that it was also stated to her (applicant) that it is her right but in spite of the option given to her, she did not opt to be searched either before a Magistrate or a Gazetted Officer and she stated that she may be searched by the Searching Officer and thereafter her search was made by two female police constables and therefore, from the perusal of the recovery memo dated 03.06.2022 it appears that provisions of Section 50 of NDPS Act have been duly complied with in its letter and spirit and, therefore, considering the non obstante clause of Section 37 of NDPS Act, applicant should not be released on bail.

7. I have heard both the parties and perused the record of the case.

8. Indisputedly, from the possession of the applicant commercial quantity of Alprazolam powder (240 gms) was recovered.

9. Section 37 of the NDPS Act regulates the bail involving commercial quantity and runs as under:

"37. Offences to be cognizable and non-bailable-

(1) Notwithstanding anything contai