Interpretation of the application of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and the effect of non-compliance on recovery.

JUDGMENT :

Ravindra Maithani, J.

Since all these bail applications arise from the same FIR, they are being decided by this common order.

2. Applicants-Prabhat Singh Bisht, Piyush Khadayat & Deepak Pandey are in judicial custody in FIR/Case Crime No. 190 of 2021, under Sections 8/20/60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the Act”), Police Station Kichha, District Udham Singh Nagar. Applicant-Pradeep Singh Fartiyal is in judicial custody in FIR/Case Crime No. 190 of 2021, under Sections 29 read with Section 8/20 of the Act, Police Station Kichha, District Udham Singh Nagar. They have sought their release on bail.

3. According to the FIR, on 12.06.2021 two cars were intercepted. One was Honda Amaze driven by co-accused Vipul Shaila, in which applicant-Piyush Khadayat was co-passenger. Another car was Wagon R being driven by applicant-Prabhat Singh Bisht and in it Deepak Pandey was co-passenger. The applicants at the time of interception revealed that they had charas. They were told their rights to be searched before a Magistrate or Gazetted Officer. Circle Officer, Police reached at the spot. Thereafter, when the search was made, from Honda Amaze Car 1.094 Kg Charas and from Wagon R Car 6.914 Kg Charas was recovered. The applicants were arrested.

4. Learned counsel for the applicant-Prabhat Singh Bisht would submit that, in the instant case compliance of Section 50 of the Act has not been made, which is mandatory. It is submitted that the option to be searched before Magistrate or Gazetted Officer was joint, which is not an option in the eye of law, in view of the law laid down by the Hon’ble Supreme Court in the case of State of Rajasthan vs. Parmanand & another; (2014) 5 SCC 345. In the case of Paramanad (Supra), in para 17, the Hon’ble Supreme Court inter alia observed “the communication of this right has to be clear, unambiguous and individual”. Further the Court observed “We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before the nearest gazetted officer or before the nearest Magistrate.

5. On behalf of the applicant-Prabhat Singh Bisht, it is argued that in the instant case, the compliance of Section 42 (2) of the Act has not been made. There is no independent witness. There is no chance recovery. He has no criminal history. Hence, it is a case fit for bail.

6. Learned Senior Counsel appearing for the applicant-Deepak Pandey would reiterate the arguments as made on behalf of the applicant-Prabhat Singh Bisht. He would submit that in the instant case, the fundamental rights and statutory rights of the applicants have been influenced. Despite prior information, no arrangements were made to secure the presence of Gazetted Officer or Magistrate, when cars were intercepted. Section 50 of the Act has been violated. Hence, it is a case fit for bail.

7. Learned counsel appearing for the applicant-Piyush Khadayat would argue that the applicant was a co-passenger. Nothing was recovered from him. He was going to meet his brother. His call details have not been examined. Hence, it is a case fit for bail.

8. On behalf of the applicant-Pradeep Singh Fartiyal, it is submitted that there is no evidence against him except confession of the co-accused, which is not legally admissible evidence.

9. On the other hand, learned State Counsel would submit that when the cars were intercepted, the applicants were occupants of the car; commercial quantity of charas was recovered from each of the cars. It is argued that the search was made in the presence of Circle Officer, who is a Gazetted Officer. From the possession of the applicants, commercial quantity of the charas was found. Hence, it is not a case fit for bail.

10. With reference to applicant-Pradeep Singh Fartiyal, learned State Counsel would submit that first bail application of the applicant has already been rejected on merits. This is a second bail application and no new