The mandatory nature of Section 50 of the NDPS Act and the negative attitude towards granting bail in cases of recovery beyond commercial quantity under Section 37 are central legal principles established in the judgment.

JUDGMENT :

SHARAD KUMAR SHARMA, J.

1. This Bail Application has been attempted to be argued by the learned counsel for the applicant, as if it is an argument extended in a Criminal Appeal, after a judgment of conviction. That may not be the scope to argue the bail application, which is absolutely a discretionary remedy depending upon the facts and circumstances of the case and social seriousness and implications of the offence too.

2. The present applicant herein is an accused for committing of an offence which has been registered against him by way of the FIR No. 46 dated 26.02.2021, for his alleged involvement in commission of offence under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

3. The police team which had raided upon and had apprehended the present applicant at the time when he was waiting for another lady at Khushalpur, it was upon search being conducted upon him, it was found that the applicant was carrying a bag, which contained a contraband i.e. smack of about 356 gm. It is not in controversy, that the amount of contraband, which has been recovered from the applicant, was beyond the prescribed commercial quantity. So far as the provisions of the N.D.P.S. Act is concerned, where the contraband which has been recovered is bound to be beyond a commercial quantity, Section 37 of the Act, imposes a restriction that there has to be a very stringent view which has to be adopted by the Court for considering the bail application and rather, in fact, the various pronouncements have gone to an extent of laying down, that in fact the Courts should adopt a negative attitude towards the bail being granted to a person from whom the commercial quantity of the specified contraband has been recovered.

4. Learned counsel for the applicant argues the bail application from the prospective, that there happens to be an apparent violation and non compliance of Section 50 of the NDPS Act. As far as Section 50 of the NDPS Act is concerned, it only acknowledges and is laying down the parameters of conditions for search and seizure of a person where a person who is apprehended with an expected contraband to have been carried by him is to be made aware and made known of his rights as to whether he wants himself to be searched through a Gazetted Officer or a Magistrate. In the FIR in question, the FIR records the following:

^^vfHk;qDr 'kjkQr ds ikl vf/kd ek=k esa LeSd gksus ij /kkjk 50 ,uŒMhŒihŒ,lŒ ,DV esa fn;s x;s Áfo/kkuksa ls voxr djrs gq, crk;k fd vki viuh ryk'kh jktif=r vf/kdkjh@eftLVªsV ds lkeus fyok ldrs gks ftl ij vfHk;qDr us crk;k fd vki gh yksx ryk'kh ys ldrs gSaA eSa dgha ugha tkÅaxk ftl ij esjs dgs vuqlkj mŒfuŒ dqynhi iUr }kjk lgefr i= rS;kj fd;k x;k vfHk;qDr dh ryk'kh esa------------**

5. The extract, as laid down above shows that the recovery made from the applicant was beyond the commercial quantity and so far as the implications of Section 50 of the NDPS Act is concerned, it has been observed by the complainant, that the applicant was made aware of his rights provided under Section 50 of the Act, but he has made a statement that since the police officials have apprehended him, they can make a search upon him.

6. Learned counsel for the applicant has made reference to the judgment of Hon’ble Apex Court as reported in State of Punjab vs. Baldev Singh, 1999 (6) SCC 172 and particularly, he has referred to the contents of Para 32, which is extracted hereunder:

“However, the question whether the provisions of Section 50 are mandatory or directory and if mandatory to what extent and the consequences of non-compliance with it does not strictly speaking arise in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched. Therefore, without expressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of Section 50 of the Act