ORDER :

This Criminal Petition is filed by the petitioner/accused No.1 under Section 437 & 439 of the Criminal Procedure Code seeking bail in Crime No. (C.O.R.No.) 157 of 2022 of Station House Officer, Prohibition and Excise, Zaheerabad Station, Zaheerabad, registered for the offence under Section 8 (C) read with Section 22 (b) of the Narcotic Drugs and Psychotropic Substance Act, 1985.

2. Heard Sri Srinivas Chathurvedula, learned counsel for the petitioner/accused No.1 as well as Sri T.V. Ramana Rao, learned Additional Public Prosecutor for the Respondent / State and perused the record.

3. The case of the prosecution, in brief, is that on 05.12.2022 at about 09:30 AM., the Prohibition and Excise Officials having reliable information regarding illegal transportation of Narcotic drugs from Goa to Hyderabad, by a Car bearing No. TS 07 GZ 9957 passing through the Excise check-post at Chiragpally, on National Highway No.65. On watch, the Excise Officials stopped Polo car and found three male and one female persons and searched the car. The two Gazetted Officers, who are available in Excise team have searched the petitioner/accused No.1 and found one capsule of cocaine which is 13.7 grams weight. The petitioner / accused No.1 confessed that he along with other accused purchased the said contraband at Carl-Cox event at Marbela Beach resort Goa on 03.12.2022 and that he along with three friends in the vehicle have consumed the drug together at their places and previously too they had been to Goa to take drug and further confessed that all of them have a share in purchase of said contraband. The Excise Officers have seized contraband packet, cell phones and vehicle by conducting panchanama.

4. It is submitted by the learned counsel for the petitioner/accused No.1 that the petitioner has been in judicial custody since 05.12.2022 and that the confession made by the accused No.1 before the Excise Officials is not admissible in law and the respondent officials have not followed the mandatory provisions of Section 50 of the NDPS Act and that the petitioner is innocent and not committed any offence and sought for grant of bail.

5. Learned Additional Public Prosecutor for the State / Respondent has submitted that that petitioner – accused No.1 is found in possession of contraband and alleged to have purchased the same for his self consumption along with other accused. It is further submitted that the investigation is completed and contraband seized from the possession of accused persons is not a commercial quantity.

6. Now the point for consideration is :

Whether the petitioner/accused No.1 is entitled for grant of bail as prayed for?

7. The quantity of contraband seized from the possession of accused is 13.7 grams of cocine, which is less than commercial quantity and above small quantity, thereby Section 37 of the NDPS Act will not apply to the facts of the case. Section 50 (1) of the NDPS Act reads as follows :

“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.”

8. In view of the above provision, it is clear that Section 50 (1) of the NDPS Act mandates that at the time of seizure or search, an option has to be given to the accused, whether to take him to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. In the case on hand, as seen from the panchanama of seizure, the raiding party has given three options to the accused to be searched either before the nearest magistrate or before the nearest Gazetted Officer and that two Gazetted Officers are available in the raiding party by name M. Subramanyam and Ch. Chiranjeevi. But giving of three options