J U D G M E N T

: JASMEET SINGH, J (ORAL)

1. This is an application seeking grant of bail in FIR No. 253/2021, under Sections 21/25/29 NDPS Act, registered at Police Station-Narela.

2. The facts in the present case are that the applicant was arrested on a secret information at Sector A-6, Narela, where she was apprehended with 300 grams of heroin. The search of the applicant was carried out by a Woman Constable, namely Seenu. It is stated by Mr Kundan Kumar, learned counsel for the applicant that the woman constable was not authorized to conduct search in the said case. It is stated that the ACP had not authorised or delegated authorization to the Woman Constable Seenu to carry out the search under Section 50 of the NDPS Act. Hence, the search itself is faulty and the applicant is entitled to bail.

2. Mr. Singh ld. counsel for the respondent has stated that since the recovery is of the commercial quantity, the twin conditions prescribed under section 37 NDPS has to be satisfied.

3. I have heard learned counsel for the parties.

4. In the present case the search has been carried out by a lady Constable Seenu.

5. The issue in the present case is that the applicant herein is required to be searched by an „empowered/authorised‟ female officer. To appreciate the submissions, I deem it apposite to refer to Section 42 and 50 of the NDPS Act, which reads as under:

“42. Power of entry, search, seizure and arrest without warrant or authorisation.

(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset, (a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or reco