Compliance with Section 50 of the NDPS Act is essential; failure to inform the accused of their rights can affect bail eligibility.

ORAL ORDER

Accused No.2 in Spl.C.No.87/2024, pending before the Court of Principal District and Sessions Judge, Dakshina Kannada, Mangaluru, arising out of Crime No.225/2023 registered by CEN Crime Police Station, Mangaluru City, Dakshina Kannada District, for offence punishable under Sections 8(c) , 22(C) , 27(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') and read with Section 34 of IPC is before this Court under Section 439 of Cr.PC seeking regular bail.

2. Heard the learned Counsel for the parties.

3. FIR in Crime No.225/2023 was registered by CEN Crime Police Station, Mangaluru City, Dakshina Kannada District for the aforesaid offences against the petitioner and others, based on the first information dated 08.12.2023 received from Sharanappa Bhandary, Police Sub-Inspector attached to CEN Crime Police Station, Mangaluru City.

4. During the course of investigation of the case, petitioner herein, arraigned as accused No.1 in the FIR was arrested on 08.12.2023 and subsequently remanded to judicial custody. After completing investigation, charge sheet has been filed against three persons and petitioner is arraigned as accused No.2 in the charge sheet. Bail application filed by the petitioner before the trial Court in Spl.C.No.87/2024 was rejected on 13.09.2024. Therefore, petitioner is before this Court.

5. Learned Counsel for the petitioner submits that the seizure of contraband article in the present case is from the person of the petitioner and therefore, compliance of the mandatory requirement of Section 50 of the NDPS Act becomes necessary. In support of his arguments, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Mina Pun vs. State Of Uttar Pradesh , reported in 2023 SCC OnLine SC 1079. He further submits that in the earlier case which was registered against him for the offences punishable under Section 27(B) of the NDPS Act, petitioner has been enlarged on bail. He submits that accused No.3 has been granted regular bail by this Court in Crl.P.No.7985/2024. Accordingly, he prays to allow this petition.

6. Per contra, learned Additional SPP has opposed the petition. She submits that seized contraband article is of commercial quantity and therefore, petitioner's prayer for grant of regular bail has to be rejected. However, she does not dispute that there is no proper compliance of Section 50 of the NDPS Act in the present case.

7. Material on record wound go to show that based on the credible information received, the first informant had conducted a raid to the alleged spot were accused persons were making attempts to sell the contraband article to the public. From the alleged spot petitioner and the other accused were apprehended and from their possession totally 120 grams of contraband article was seized. From the possession of the petitioner totally 70 grams of contraband article allegedly MDMA was seized and from the possession of accused No.3, contraband article allegedly MDMA totally weighing 50 grams was seized.

8. Perusal of the seizure mahazar would go to show that recovery of the contraband article is from the person of the petitioner. Therefore, compliance of Section 50 of the NDPS Act becomes mandatory.

9. Perusal of the notice issued by the police in compliance of Section 50 of the NDPS Act would go to show that in the said notice it is stated that petitioner had an option to be searched in the presence of Gazetted Officer and there is no mention of his right to be searched in the presence of Jurisdictional Magistrate. Section 50 of the NDPS Act specifically mentions that the accused has got a right to be searched either in the presence of a G