JUDGMENT

Hon'ble Lok Pal Singh, J. (Oral)

1. Third bail application has been filed by the applicant in case crime No. 1 of 2016 under Section 8/20 of NDPS Act, Police Station N.C.B., District Dehradun. The second bail application had been rejected by this Court vide order dated 19.07.2017 as it was not filed with correct particular by the applicant. A complaint was filed by N.C.B. before the Special Judge NDPS, Dehradun, though the complaint filed by the N.C.B. has not been brought on record by the applicant.

2. The memo of search has been annexed along with bail application. It is mentioned in the arrest memo that information was received by the N.C.B. Dehradun that some suspected person is coming at I.S.B.T. Dehradun. The N.C.B. team immediately went to the spot and tried to find out the suspect person. On assuming that there is a suspect person, the N.C.B. team took on independent witness Mr. Mahavir Singh Rawat, who was the local resident of Dehradun and found that one suspect person, who was carrying a cloured printed bag, is standing at the gate of I.S.B.T. Dayal Amrit was printed on the said bag. The N.C.B. team stopped and introduced him. The accused was duly informed of his right of being searched to be a Gazetted Officer or the Magistrate, as required under Section 50 of the NDPS Act., but he declined that offer. When the accused declined to search before the Gazetted Officer or the Magistrate and gave his consent to search him by the N.C.B. team, then nothing was found from the body of the applicant. But the search of the bag, a white colour bag was found and some brown colour cylindrical sticks were found. Then, the N.C.B. team opened the bag and found substance ‘charas'. The contraband article was weighed and its weight was found to be 2.7 Kg. The applicant has admitted that he brought charas from Manglore, District Dehradun, and earlier he also sold the same in Dehradun. In the presence of independent witness, the recovered charas was sealed.

3. It is the contention of learned counsel for the applicant that there was no compliance of Section 50 of the NDPS Act., which is reproduced herein under:-

“50. Conditions under which search of persons shall be conducted.—

(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female. 2[(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.]

4. The learned counsel for the applicant has also placed reliance on the judgment of Five Judges Bench of Hon'ble Apex Court in the case of Vijaysinh Chandubha Jadeja vs. State of Gujarat reported in 2011 (1) SCC 609 the relevant