Compliance with statutory search procedures is a question of fact for the trial stage; potential procedural irregularities in search and seizure do not inherently override statutory conditions for bail, and courts at the bail stage cannot pre-emptively determine the validity of the evidence.

This application praying for bail of the accused, Sri Rahul Choudhary, is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, (in short, BNSS) 2023 in connection with Amtali P.S. Case No.2025 AMT 020 dated 27.02.2025 subsequently renumbered as Special (NDPS) 100 of 2025 pending in the learned court of the Special Judge, Court No.2, West Tripura, Agartala where charge-sheet is laid under Sections 21(c)/25/29 of NDPS Act, 1985.

Heard Mr. S. Lodh, learned counsel appearing for the accused petitioner. Also heard Mr. R. Datta, learned Public Prosecutor, appearing for respondent-State.

The prosecution case is that on 27.02.2025, when the informant, a Sub-Inspector of Police, while performing duty at bypass road near Agartala Railway track area with other police personnel, noticed that 6[six] persons were standing together besides the bypass road, and 3[three] of them were having backpack with them. Seeing the police, they tried to flee away but 4[four] of them were detained. On asking, those detained persons disclosed that they were having Eskuf syrups with them in two numbers of backpack and out of them, 3[three] were minors in age. On getting information, Inspector, Sri Himadri Sarkar, O/C of Amtali P.S. along with other police staff arrived there. Thereafter, the informant along with other staff under the leadership of said Inspector, Himadri Sarkar conducted search on the person of the said detained persons and also the backpack, after obtaining their consent under Section 50 of the NDPS Act, to cause search in presence of a Gazetted officer i.e. in presence of Inspector, Himadri Sarkar who was present at the spot and on search, from the backpack, total 50 nos. of Eskuf syrups were recovered from the accused persons and further, 35 nos. of Eskuf syrups were also recovered from backpack of another co accused.

Mr. S. Lodh, learned counsel appearing for the accused petitioner submits that Section 50 of the NDPS Act was not complied with in its true spirit rendering the search and seizure as well as the recovery illegal. Learned counsel submits that securing presence of Inspector, Himadri Sarkar, who is a Gazetted Officer, cannot be treated to be compliance of Section 50 of the Act as he was the member of the search party. Referring to the evidence of PW-2, learned counsel submits that he was one of the witnesses, who signed in the notice, regarding compliance of Section 50 of the Act but he has not stated anything about compliance of such provision by the searching officer before the search was conducted. Moreover, in the said notice, it was kept blank whether the accused required or did not require that his personal search to be conducted in presence of the nearest Gazetted Officer or Magistrate. For better understanding, the relevant portion of the notice, where the signature of the accused was taken containing his statement, is extracted hereunder:

“I have been informed and have understood the Notice of Personal Search under section 50 of the NDPS Act, 1985. I require/do not require that my personal search may be conducted in presence of the nearest Gazetted Officer or Magistrate.”

Learned counsel also submits that for violation of Section 50 of the Act, the search and recovery have become vitiated and therefore, rigour of Section 37 will not be applicable.

Mr. Lodh, learned counsel in support of his contention, relies on a decision in the case of Doniyar Vildanov vs. State of U.P. , 2026 SCC OnLine SC 132, wherein at paragraph No.9, it was observed by the Hon’ble Supreme Court that the sequence of events as spoken of by PW1 to PW3 clearly indicated that immediately on interception, the bag of the accused was searched and the contraband was detected. The consent letter was signed after said detection of contraband item was made. The recovery of Mahazar did not indicate a bag in which the contraband item was said to be smuggled. There were also inconsistencies in the evidence of three important witnesses viz. PW-1