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SAMEER JAIN
Neelam Devi – Appellant
Versus
State of U. P. – Respondent
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 ha
The voluntary waiver of the right to be searched before a Gazetted Officer or Magistrate by the accused allowed the empowered officer to conduct the search without the presence of a Gazetted Officer ....
The mandatory nature of Section 50 of the NDPS Act and the importance of safeguarding the accused's rights were established in the judgment.
The main legal point established in the judgment is the mandatory nature of compliance with Section 50 of the NDPS Act, especially regarding the search of females by female officers.
Non-compliance with Section 50 NDPS Act for personal search renders contraband recovery suspicious and vitiates conviction based thereon, as safeguards are mandatory.
Non-compliance of mandatory provisions like Sections 42 and 50 of the N.D.P.S. Act can be considered as a ground for bail if clear from the F.I.R. and not explained by the prosecution.
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