Section 50 of the NDPS Act does not apply to searches of bags or containers, but only to personal searches.

ORDER

This is an application for regular bail.

2. Petitioner is the accused in Crime No.15 of 2021 of Kasaragod Excise Range registered alleging commission of offence punishable under Section 22 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “NDPS Act”).

3. The case of prosecution is that on 04.10.2021 at 11.45 a.m.

the petitioner was found possessing and transporting 51 grams of MDMA in a motorcycle bearing registration No.KL-14 S 9246 near a bus waiting shed at Baikatta of Kayyar Village and thus committed the abovesaid offence.

4. Petitioner submitted that he was arrested on 04.10.2021.

Petitioner submitted that he is totally innocent of the charges levelled against him. Petitioner produced Annexure-A2 seizure mahazar and contended that there is violation of Section 50 of the NDPS Act in the matter of search of the petitioner.

5. The learned Public Prosecutor relying on the seizure mahazar submitted that while excise party was on duty, they found a Bajaj pulsar motorcycle bearing registration No. KL-14 S 9246 turning to Paniyadukkam road and seeing the excise party the passenger, Muhammad Zameer was found perplexed and in the attempt to flee he lost balance and fell down on the road. The Excise Circle Inspector found that a small bag was loosely strapped to the wrist of the petitioner and he tried to hide the same. Under suspicion, the Circle Inspector took the bag from the petitioner and searched it and he found currency notes, two bundles of small polythene sachets, a plastic spoon and a glass bulb with a hole on its side and with its upper end drawn into an elongated tube. There was also a digital weighing balance inside the bag. Those sachets are used by the drug sellers for packing drugs for retail sale, and the glass bulb was an apparatus used by drug addicts and they use it to melt the drug and to inhale the resulting vapour and the small spoon they used for transferring drug to the sachets and that the small digital weighing balance is usually used by the drug sellers to measure out the drug for sale. The accused confessed that he had MDMA, which is a psychotropic substance, in his pants pocket. Thereupon the Circle Inspector decided to search the body of the accused and as stipulated in Section 50 of the NDPS Act and he apprised the accused of his right to be searched in the presence of a Magistrate or a gazetted officer. Thereafter, the Circle Inspector of Excise, Kasargod was summoned, who is an empowered gazetted officer to witness the body search. In his presence, the body of the accused was searched. In the search he received a plastic sachet containing white crystalline substance and the accused revealed that the same was MDMA. He measured the MDMA using the digital balance kept in the detection kit and found that it weighed 51 grams. It is further submitted that in the chemical analysis report of the sample of the seized contraband, it was revealed that the drug seized was actually not MDMA, but methamphetamine. As the quantity seized from the possession of the accused was 51 grams, which is sufficient to attract Section 22 (c) of the NDPS Act as the contraband article was of a commercial quantity. The motorbike used by the accused was registered in the name of the petitioner’s elder brother, but on investigation it was found that the same was bought by the accused for his own use. So it could be seen that in the bag seized, materials used for sale and for consumption of narcotic drug were found and in the actual body search the narcotic drug was found and seized. The contention now raised by the counsel for the petitioner based on Annexure-A2 seizure mahazr is that the said search was not in accordance with of the NDPS Act. Such contention is raised based on Annexure-A2 seizure mahazar mainly for the reason that the bag was searched by the investigating officer himself and therefore, the search was not in accordance with the provisions of of the NDPS Act. But a further reading of t