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* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 23.11.2022
Judgment pronounced on: 28.03.2023

+ BAIL APPLN. 1725/2022

MOHD. JABIR ..... Petitioner
Through: Mr. U.A. Khan, Advocate with Mr.
Shahrukh Khan and Mr. Ali Aariz,
Advocates
versus
STATE OF NCT OF DELHI ..... Respondent
Through: Mr. Y.S. Chauhan, APP for State

CORAM:
HON'BLE MR. JUSTICE JASMEET SINGH
JUDGMENT

: JASMEET SINGH, (J)

1. This is an application seeking regular bail in FIR bearing No.637/2020,

U/s 21/29 NDPS Act, P.S. Bhalswa Dairy, Delhi dated 28.10.2020.
2. The facts of the case are that on 27.10.2020 at about 07:45 pm, SI
Dilbag Singh at the Narcotic Cell's office in the Outer North District of
Delhi received a secret information stating that one Wasim (co-accused
herein) had previously bought heroin from one Rashid, who was a
resident of Bareilly. He used to bring it to Delhi, and supply it to Mohd.
Jabir (applicant herein), a resident of Bhalswa Dairy.
3. It was also stated in the secret information that on 27.10.2020, Jabir,
the applicant herein, would come to Bhalswa Chowk in between 9:30

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 pm to 11:30 pm to take supply of heroin from Wasim and would go to
Bhalswa Dairy after taking the same. Additionally, it was suggested in
the secret information that both of them could be caught in the act if
Nakabandi is done at Bhalswa Chowk.
4. The secret informer was produced before the Insp. Brij Pal Singh at his
office at 08:00 pm who after satisfying himself, informed
ACP/Operation/OND Sh. Rich Pal about the secret information. Sh
Rich Pal received the same at 08:07 pm and instructed for raid to be
conducted.
5. It is the case of the prosecution that the secret information was reduced
into writing vide DD no.7 at 08:15 pm and the copy thereof handed
over to Insp. Brij Pal Singh who forwarded the same to
ACP/Operations/OND. Post this a raiding team was constituted by SI
Dilbag Singh consisting of HC Sandeep NO.234/OLD, HC Pawan
No.177/OND, Ct. Vinod No.1945/OND, Ct. Bishadev No.2434/OND
and allegedly the raid was conducted.
6. At about 09:45 pm, one person was noticed coming on foot from the
side of Outer Ring Road who crossed the bridge and was seen coming
towards Nala Road, Bhalswa Chowk. He was carrying a black coloured
bag on his back. The secret informer identified the said person as
Wasim. Wasim after crossing the bridge, stopped and started waiting
for someone. In the meantime, another person was also noticed coming
from the side of Bhalswa Dairy on the Nala Road, who was identified
by the secret informer as Jabir-applicant herein.
7. It is further the case of the prosecution that upon meeting with each
other, Wasim took out a packet from inside his black coloured bag and

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 handed it over to Jabir, , the applicant herein. It was at that point of
time, at 09:55 pm, the police apprehended both of them. After
enquiring their name and addresses, police identified one as Wasim S/o
Chhote Khan R/o Village Laxmiyapur, Harvanshpur, PS Bhojipura,
District Barelly, UP aged about 28 years and second as Mohd. Jabir
(the applicant herein) S/o Matloob R/o D-1/764, J/ Colony, Bhalswa
Dairy, Delhi aged about 32 years.
8. The prosecution further states that notices U/s 50 NDPS Act were
served. Post which their replies were obtained on the body of their
respective notices in their own hand writing. Thereafter
ACP/Operation/Outer North Distt. was called at spot and in the
presence of ACP/Operation their search was carried out. And 500 gm
of heroin was recovered from each person separately.
9. Thereafter investigation was carried out and after completion of the
investigation the charge sheet was filed against the applicant U/s 21/29
NDPS Act before the court of Sh. Gagandeep Singh, ASJ, North Distt.,
Rohini Courts, Delhi. Vide order dated 23.05.2022 charges U/s 21/29
NDPS Act were framed against the applicant. The matter is at the stage
of the prosecution evidence.
10. The Trial Court was pleased to dismiss the regular bail application of
the applicant vide order dated 06.05.2022, observing that the present
case is related to the commercial quantity and therefore, the applicant is
not entitled to be released on regular bail.

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 Submissions:

11. The Ld counsel for the applicant states that no option of personal
search was given to the accused for his personal search in the presence
of magistrate/gazette officer nor was search conducted out in presence
of Gazetted officer /Magistrate and hence there is violation of section
50 NDPS act.
12. It is also stated that there is discrepancy between the secret information
and the notice served u/s 50 NDPS.
13. It is also contended that there is violation of section 55 NDPS Act in
the present case. As per section 55 NDPS Act, the case property has to
be deposited by the officer in-charge (SHO) of the local police station
to the Malkhana while affixing his seal but here in the present case, the
case property was deposited by the first IO SI Dilbag Singh.
14. It is also submitted that section 57 has been violated in the present case.
Report Us 57 NDPS Act were prepared later on in order to falsely
implicate the applicant.
15. Lastly the Ld. Counsel submitted that there is false implication of the
applicant in the case. This is apparent from the fact that apart from the
testimony of the police officials and documents prepared by them
which are shaky in nature and there is no other independent witness
which confirms the story of the prosecution.
16. On the other hand, the Ld. APP for the state submits the there is
compliance of section 50 since the as the applicant and co-accused
were served with written notices u/s 50 NDPS Act and their replies

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 were obtained on the body of their respective notices in the applicant
and co-accused‟s own hand writing.
17. It is also submitted that although 1st Charge Sheet dated 01/04/2021
was filed by 1O/ASI Rajbir Singh, but inadvertently he forgot to file
copy of Special Reports u/s 57 NDPS Act with the charge sheet.
However, it was mentioned in the column of witnesses of the charge
sheet at Sl. No. 12 & 13, that original D.D Entry recorded, u/s 42
NDPS Act and original special reports u/s 57 NDPS Act, would be
produced in court by Reader to ACP/Operation and that the same
would be proved by ACP/Operation at the time of evidence. Now all
these original reports have been filed in court through supplementary
charge sheet dated 09/05/2022, after collecting the same from office of
ACP/Operation/Outer North Distt.
18. The applicant accused was previously arrested in another case of NDPS
Act registered vide FIR No. 217/19 dt 26/07/2019 u/s 21/29 NDPS Act,
P.S Crime Branch
19. The case involves recovery of commercial quantity of drugs hence the
provisions of section 37 shall apply stringent bail condition shall apply.

Analysis:

20. I have heard the learned counsels for the parties. In cases involving
commercial quantity, rigors of section 37 have to be met. The Section
37 states as under:-

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 “37. Offences to be cognizable and non-bailable.-(1)
Notwithstanding anything contained in the Criminal Procedure Code,
1973 (2 of 1974) -

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for [offences

under section 19 or section 24 or section 27A and also for
offences involving commercial quantity] shall be released on
bail or on his own bond unless -

(i) the Public Prosecutor has been given an opportunity to

oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the

court is satisfied that there are reasonable grounds for
believing that he is not guilty of such offence and that he is
not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of

subsection (1) are in addition to the limitations under the Criminal
Procedure Code, 1973 (2 of 1974) or any other law for the time being
in force, on granting of bail.]”

21. The Hon‟ble Supreme Court in Narcotics Control Bureau v. Mohit

Aggarwal, 2022 SCC OnLine SC 891 states that

12. The expression “reasonable grounds” has come up for

discussion in several rulings of this Court. In “Collector of
Customs, New Delhi v. Ahmadalieva Nodira”5, a decision
rendered by a Three Judges Bench of this Court, it has been held
thus:—

“7. The limitations on granting of bail come in only when the

question of granting bail arises on merits. Apart from the grant
of opportunity to the Public Prosecutor, the other twin conditions

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 which really have relevance so far as the present accused-
respondent is concerned, are : the satisfaction of the court that
there are reasonable grounds for believing that the accused is
not guilty of the alleged offence and that he is not likely to
commit any offence while on bail. The conditions are cumulative
and not alternative. The satisfaction contemplated regarding the
accused being not guilty has to be based on reasonable
grounds. The expression “reasonable grounds” means
something more than prima facie grounds. It contemplates
substantial probable causes for believing that the accused is
not guilty of the alleged offence. The reasonable belief
contemplated in the provision requires existence of such facts
and circumstances as are sufficient in themselves to justify
satisfaction that the accused is not guilty of the alleged
offence.”

[emphasis added]

13. The expression “reasonable ground” came up for discussion

in “State of Kerala v. Rajesh”6 and this Court has observed as
below:

“20. The expression “reasonable grounds” means something

more than prima facie grounds. It contemplates substantial
probable causes for believing that the accused is not guilty of the
alleged offence. The reasonable belief contemplated in the
provision requires existence of such facts and circumstances as
are sufficient in themselves to justify satisfaction that the
accused is not guilty of the alleged offence. In the case on hand,
the High Court seems to have completely overlooked the
underlying object of Section 37 that in addition to the limitations
provided under the CrPC, or any other law for the time being in
force, regulating the grant of bail, its liberal approach in the
matter of bail under the NDPS Act is indeed uncalled for.”

[emphasis added]

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 14. To sum up, the expression “reasonable grounds” used in
clause (b) of Sub-Section (1) of Section 37 would mean credible,
plausible and grounds for the Court to believe that the accused
person is not guilty of the alleged offence. For arriving at any
such conclusion, such facts and circumstances must exist in a
case that can persuade the Court to believe that the accused
person would not have committed such an offence. Dove-tailed
with the aforesaid satisfaction is an additional consideration that
the accused person is unlikely to commit any offence while on
bail.

15. We may clarify that at the stage of examining an application

for bail in the context of the Section 37 of the Act, the Court is
not required to record a finding that the accused person is not
guilty. The Court is also not expected to weigh the evidence for
arriving at a finding as to whether the accused has committed an
offence under the NDPS Act or not. The entire exercise that the
Court is expected to undertake at this stage is for the limited
purpose of releasing him on bail. Thus, the focus is on the
availability of reasonable grounds for believing that the accused
is not guilty of the offences that he has been charged with and he
is unlikely to commit an offence under the Act while on bail.”

22. As is clear from the above, this court while considering the application
for bail with reference to section 37 of the Act is not called upon to
record a finding of not guilty. It is for the limited purpose essentially
confined to the question of releasing the accused on bail that the court
is called upon to see, whether, there is more than a prima facie case in
favour of the accused, that there are reasonable grounds for believing
that the accused is not guilty and the court is required to record its
satisfaction about the existence of such grounds. The court is not
required to consider the matter as if it is pronouncing the judgment of

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 acquittal and recording the finding of “not guilty.”
23. In this background, I shall now determine whether section 50 notice
was served upon the applicant and if yes whether the section 50 notice
was in accordance with the provisions laid down in NDPS Act.
24. In the present case, it is alleged that section 50 notice was not served
upon the applicant. For the same the ld. Counsel for the applicant has
relied on the
a) discrepancy between the secret information and the notice under
section 50,
b) violation of section 55 and section 57 as well as
c) non-joinder of independent parties

a) Discrepancy between the secret information and the notice under

section 50 notice
25. In the present case, the entire case of the prosecution is set up on the
secret information. The secret information is produced herein below

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 “DD No. 7 dated 27.10.2020 Narcotic Cell/OND

SI Dilbagh Singh, No. 4857/D

Receipt of Information from the Informer

Time: 08:15 PM

It is registered at this time that around 07:45 PM, the Secret

Informer came to the Office of Narcotic Cell/OND, Delhi and informed

me, the SI, that a man named Wasim purchases heroin from a man

named Rashid, R/o Bareilly and supplies the same to Md. Jabir, R/o

Bhalsawa in Delhi. Furthermore, Jabir will meet Wasim today at

Bhalsawa Chowk between 09:30 PM to 11:30 PM to receive his delivery

of Heroin. Thereafter, Jabir will go to Bhalsawa with his delivery. I

enquired the Informer to my satisfaction before producing him in the

Office of Insp. Brijpal at 08:00 PM. I apprised Insp. Brijpal regarding

the information received from the Informer who in turn enquired the said

Informer to his satisfaction. Thereafter, he telephonically informed the

ACP Operation/OND Sh. Ricch Pal regarding the information received

at around 08:07 PM at which the ACP gave orders to conduct an

immediate raid in order to carry out the necessary legal proceedings.

The report regarding the receipt of information has been registered. A

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 copy of the said report has been separated and handed over to Insp.

Brijpal Singh for proceedings U/s 42 NDPS Act.

Sd/- (Illegible)
SI Dilbagh Singh,
No. 4857/D
(...sic…)”

26. As is clear from the above, one person namely Wasim was to procure
the heroin from one Rashid of Bareilly. As it transpired, that on that
day also, Wasim procured the heroin to applicant near Bhalswa Chowk
in between 9:30 to 11:30 pm. Even the FIR states that
“at about 7:45 pm, the secret informer came in the office of
Narcotic Cell, Outer North District, Delhi and informed SI
Dilbag Singh that one person namely Wasim procure the heroin
from one Rashid from Bareilly UP and, supply the same in Delhi
to one Mohd. Jabir. Today also, Jabir would come near Bhaslwa
Chowk in between 9:30 pm to 11:30 pm to take the supply from
Wasim and will go to..”

27. However, when the notice U/s 50 were prepared qua both the accused
persons, it was mentioned in their notices that both are involved in the
sale and purchase of the heroin and both of them have come to Delhi
to supply the heroin to other accused persons.
28. The notice served upon the applicant reads as under:

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 “

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 TRUE TYPED COPY
DD No. 8 dated 27.10.2020 Narcotic Cell/OND

Notice U/s 50 NDPS Act

Mr. Mohd. Jabir, S/o Matloob, Age 32 years R/o D 1/764, JJ Colony,

Bhalsawa Dairy, Delhi, you are hereby informed through this Notice that

the Police has received information regarding your involvement in the sale,

purchase and supply of heroin and that you have come to this spot to supply

heroin (purchase) to someone, even today. You are most likely in possession

of heroin for which your search is to be conducted. You have the legal right

to get yourself searched in the presence of any Gazetted Officer or

Magistrate. You also have the right to search the members of the Police

Party and their vehicle before your own search.

A copy was supplied.

Sd/- (In Hindi)

Jabir
Witnesses:
1. Sd/- HC Sandeep Kumar
2. Sd/- Ct. Vinod
Sd/- Dilbagh Singh,
No. 4857/D
Narcotic Cell/OND
Date: 27.10.2020”

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 29. The FIR is matching the secret information, but the section 50 notice is
differs to the FIR and the secret information. The role of the applicant
differs in the section 50 notice. As per the FIR and secret information,
it was mentioned that the applicant will only collect/purchase heroin
from one Rashid Khan. However, in the notice u/s 50, the role of the
applicant is more detailed. In the notice under section 50 it was alleged
that the applicant was involved in the buying of the contraband as well
as the supply. I am not convinced by the argument. The notice is not be
read with the mathematical precision and as long as the word purchase/
collect is appearing in section 50 notice, I am of the view that there is
no material inconsistency to that an extent to render the notice as
invalid. The question whether the section 50 is an afterthought can only
be decided once the parties are in the witness box.
30. The next argument is that the section 50 notice was prepared in a
mechanical order. For this it is also relevant to see the refusal for
personal search of both the applicant and the co-accused.

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 “I have received the notice and read over and understood the same. You

have made me understand the meaning of Gazetted Officer and Magistrate. I

don‟t want myself to be searched in the presence of any Gazetted Officer or

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 Magistrate neither want to search the Police personnel and their Vehicle.

You can conduct my search.

Sd/-
Jabir
27.10.2020
Witness:
1. Sd HC Sandeep Kumar
2. Sd Ct. Vinod

Sd/-
Dibag Singh
No. 4857/D
Narcotics Cell/OND
Date: 27.10.2020

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 “(I) have received the notice and read over and understood the same. You

have made me understand the meaning of Gazetted Officer and Magistrate. I

don‟t want myself to be searched in the presence of any Gazetted Officer or

Magistrate neither want to search the Police personnel and their Vehicle.

You can conduct my search.

Sd/-
Waseem Khan
27.10.2020
Witness:

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 1. Sd HC Sandeep Kumar
2. Sd Ct. Vinod

Sd/-
Dibag Singh
No. 4857/D
Narcotics Cell/OND
Date: 27.10.2020

31. A bare perusal of the refusal makes it clear that that both refusals are
verbatim and identical. The same raises a suspicion in favor of the
applicant and against the respondent that the section 50 notice as well
as the refusal were fashioned by the Police authorities in Police Station
after arrest and seizure.. However, again whether it was fashioned in
the police station or it is a coincidence that both refusals are verbatim
and identical can only be decided once the evidence is led and trial has
taken place.

b) Violation of section 55 &57

32. It is also argued that there is violation of section 55 and section 57 of

the NDPS. Section 55 reads as under:

“55. Police to take charge of articles seized and delivered.—An

officer-in-charge of a police station shall take charge of and keep
in safe custody, pending the orders of the Magistrate, all articles
seized under this Act within the local area of that police station
and which may be delivered to him, and shall allow any officer

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 who may accompany such articles to the police station or who
may be deputed for the purpose, to affix his seal to such articles
or to take samples of and from them and all samples so taken
shall also be sealed with a seal of the officer-in-charge of the
police station.”

33. Hence, as per section 55 NDPS Act, the case property has to be
deposited by the officer in-charge (SHO) of the local police station to
the Malkhana while affixing his seal but here in the present case, the
property was deposited by the first IO SI Dilbag Singh. The same can
be seen from the following:

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 No. of Date of Description of Property Signature of
FIR from deposit recipient (
whom and name including person
taken of by whom dispatch)
and from depositor
what
Place
DD No. SI Memo Regarding Seizure Of Today on
8A dated Dilbagh Heroin And A Black Bag 28.10.2020, the
27.10.20 Singh No. In the presence of the heroin mentioned
20 4857/D witnesses mentioned in this memo was
Narcotic Narcotic hereinafter, the cursory sent through HC.
Cell/ON Cell/OND search of Mr. Waseem S/o Rajesh No.

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 D Dt. Chhote Khan, aged: 25 Yrs, 1074/OND to
FIR No. 27/10/20 R/O Village Lakshneeyapur, Rohini Court Delhi
637/2020 Harbanspur, PS Bhajipura, vide RC No.
U/s Dist. Bareilly (UP) was 177/21/20.
21/29 conducted on the spot i.e, Sd/-
NDPS Nullah Road, Bhalswa 28.10.2020
ACT Chowk. During the search a
P.S. Black coloured bagpack
Bhalswa made of rexine whereon
Dairy words „Fastrack‟ were
mentioned in English in
white colour and there was
also a logo of the same
brand, there are two pockets
on the front two straps of the
bag to hang, was taken from
his possession and checked.
A transparent heavy
polythene bag which was tied
at the top with the help of a
rubber band was found in the
bag and containing light
brown coloured powder like
substance. The powder so
recovered was checked with
the help of Field Testing Kit
and found to be Heroin. The
total weight of the same
along with the transparent
polythene bag was found to
be at 500 grams on the
Electronic Weighing
Machine. The Heroin so
recovered was kept in the
same transparent polythene
bag after tying with the help
of the rubber band and
assigned mark „A‟. It was

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 kept in the transparent
plastic box and the box was
converted into a parcel by
way of closing its cover with
the help of medical tape.
Which was also assigned
mark „A‟. The same was
sealed with the seal of „SK‟
by me. The recovered Black
coloured rexine bag was
separately converted into a
parcel with the help of white
cloth piece.

34. The violation of section 57 NDPS Act is also alleged by the applicant.
Section 57 states:

"whenever any person makes any arrest or seizure under this

Act, he shall, within forty-eight hours next after such arrest or
seizure, make a full report of all the particulars of such arrest of
seizure to his immediate official superior"

35. In the present case, neither any report qua the seizure nor the arrest of
the accused was prepared either by the first 10 or by the second IO to
their higher officials. No report U/s 57 NDPS was filed along with the
charge sheet. This is an admitted fact that during the course of the
argument of bail application before the Trial Court, the counsel of the
applicant has raised the issue qua the section 57 NDPS Act. Thereafter,
in the form of the supplementary charge sheet, the prosecution filed the
report Us 57 NDPS Act on 09.05.2022 before the Trial Court.

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 36. Although there seems to be prima facie a violation of 55& section 57
of the NDPS act the same would not entitle the Applicant for bail as
these are not mandatory conditions.
37. Cumulatively whether all the above grounds show that there was no
service of section 50 notice cannot be conclusively said in a bail
application under NDPS Act involving commercial quantity. These are
all issues which require trial.

c) Non-joinder of independent parties

38. The Drug Law Enforcement Field Officer's Handbook, Narcotics

Control Bureau, Ministry of Home Affairs Government of India states
the importance of joining of independent witnesses. In case there is
lack of independent witnesses, it stresses upon videography:

“Video: A lot of times the witnesses and suspect allege foul play
by the search team during the trial proceedings alleging that they
were not present at the time of recovery. To avoid such a
situation, all recovery and concealment methods should be
videographed simultaneously if possible, recording the presence
of the owner/occupant of the premises and the witnesses. This
acts as a deterrent later during trial proceedings.”

39. In the present case, understandably it would have been difficult to join
any public person during the search seizure and other proceeding at the
spot since it was late at night. However, the raiding team has also not
conducted any videography during the search and seizure.
40. However, merely because independent witnesses were not present or no
videography was recorded, the conclusion cannot not be drawn that
accused was falsely implicated. This has been so observed in

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 CRIMINAL APPEAL NO. 1605 OF 2021 (ARISING OUT OF
SPECIAL LEAVE PETITION (CRIMINAL) NO. OF 8425 OF 2021)
titled as „Kallu Khan V State of Rajasthan‟.
41. Now coming to the second question, whether the notice u/s section 50,
if served, was in accordance with the provisions laid down in NDPS
Act. Section 50 states:
“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 nearest Gazetted Officer of
any of the departments mentioned in section 42 or to the nearest
Magistrate.
(2) If such requisition is made, the officer may detain the person
until he can bring him before the Gazetted Officer or the
Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such
person is brought shall, if he sees no reasonable ground for
search, forthwith discharge the person but otherwise shall direct
that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason
to believe that it is not possible to take the person to be searched
to the nearest Gazetted Officer or Magistrate without the
possibility of the person to be searched parting with possession of
any narcotic drug or psychotropic substance, or controlled

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 substance or article or document, he may, instead of taking such
person to the nearest Gazetted Officer or Magistrate, proceed to
search the person as provided under section100 of the Code of
Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer
shall record the reasons for such belief which necessitated such
search and within seventy-two hours send a copy thereof to his
immediate official superior.”

42. In the present case, section 50 notice which was served upon the
applicant reads as under:

“You have the legal right to get yourself searched in the presence
of any Gazetted Officer or Magistrate.”

43. In my opinion, there is illegality in notice served U/s 50 NDPS Act

dated 27.10.2020. The section 50 categorically mandates that where the
accused requires a search, the search has to be done by nearest gazetted
officer/nearest magistrate
44. However, the section 50 notice served upon the applicant and the co-
accused informs incorrectly that they can be searched by any gazetted
information/magistrate. This, in my opinion is where the violation of
section 50 lies.
45. It is correct that both the accused persons were informed that of their
rights regarding personal search but the same was not informed as per
the strict provisions of section 50.
46. In Ishdan Seikh v. Union of India, 2022 SCC OnLine Cal 1545, a
division bench of Calcutta High Court observed

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 “16. In the present case, the appellants were misled by the
incorrect offer given to them that they could be searched by a
Gazetted Officer who is a member of the raiding party. A
Gazetted Officer who had proceeded to the place of occurrence
after entertaining reasonable belief that the accused persons may
be carrying narcotic substance cannot be said to be an
independent person before whom the law contemplates a search.
In this backdrop, acceptance of the offer by the appellants to be
searched before an officer who is a member of the raiding party
cannot be said to be a voluntary expression of their desire to be
searched before such officer. There is a clear misdirection in law
in the offer given to the appellants and accordingly they were
misled to agree to a search before an officer who was a member
of the raiding party. By no stretch of imagination, such
acknowledgment on their part can be said to be a voluntary
relinquishment of the right enshrined under Section 50 of the
NDPS Act.

17. Crux of the safeguard enshrined in Section 50 of the NDPS

Act is that an accused should be made aware of his right to be
brought before a Magistrate or a Gazetted Officer prior to a
personal search. Such offer may be oral or in writing but the
terms of the offer must be clear, unequivocal and not create
confusion in the mind of an accused with regard to the lawful
requirements prior to the search in any manner whatsoever.”

47. As is clear from the above, the emphasis on the word “nearest” is
important since it ensures independence. In deviating from the
provisions as laid down in section 50, the IO practiced a third option of
having the search conducted by someone who was part of the operation
of this particular alleged drug seizure. The IO practiced a third option
which is unknown to law.

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 48. The ACP was the part of the raiding team and it was on his direction
the entire investigation was initiated, could not be called an
independent officer. He was after all the Gazetted Officer who had
proceeded to the place of occurrence after entertaining reasonable
belief that the accused persons may be carrying narcotic substance and
hence cannot be said to be an independent person before whom the law
contemplates a search under NDPS.
49. In State of Rajasthan v. Parmanand, (2014) 5 SCC 345, the Hon‟ble
Supreme court observed as follows:

19. We also notice that PW 10 SI Qureshi informed the

respondents that they could be searched before the nearest
Magistrate or before the nearest gazetted officer or before PW 5
J.S. Negi, the Superintendent, who was a part of the raiding
party. It is the prosecution case that the respondents informed the
officers that they would like to be searched before PW 5 J.S. Negi
by PW 10 SI Qureshi. This, in our opinion, is again a breach of
Section 50(1) of the NDPS Act. The idea behind taking an
accused to the nearest Magistrate or the nearest gazetted officer,
if he so requires, is to give him a chance of being searched in the
presence of an independent officer. Therefore, it was improper
for PW 10 SI Qureshi to tell the respondents that a third
alternative was available and that they could be searched before
PW 5 J.S. Negi, the Superintendent, who was part of the raiding
party. PW 5 J.S. Negi cannot be called an independent officer.
We are not expressing any opinion on the question whether if the
respondents had voluntarily expressed that they wanted to be
searched before PW 5 J.S. Negi, the search would have been
vitiated or not. But PW 10 SI Qureshi could not have given a
third option to the respondents when Section 50(1) of the NDPS
Act does not provide for it and when such option would frustrate
the provisions of Section 50(1) of the NDPS Act. On this ground
also, in our opinion, the search conducted by PW 10 SI Qureshi
is vitiated.

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 50. In my opinion the use of the word “nearest” by the legislature is
intentional and has been used to ensure neutrality and independence at
the time of search.
51. Therefore, it was improper for the IO to suggest in the notice under
section 50 that “any” Gazetted Officer can be called.
52. In Nathi Devi v. Radha Devi Gupta, (2005) 2 SCC 271, the Hon‟ble
Supreme Court observed:

13. The interpretative function of the court is to discover the true

legislative intent. It is trite that in interpreting a statute the court
must, if the words are clear, plain, unambiguous and reasonably
susceptible to only one meaning, give to the words that meaning,
irrespective of the consequences. Those words must be
expounded in their natural and ordinary sense. When the
language is plain and unambiguous and admits of only one
meaning, no question of construction of statute arises, for the Act
speaks for itself. Courts are not concerned with the policy
involved or that the results are injurious or otherwise, which may
follow from giving effect to the language used. If the words used
are capable of one construction only then it would not be open to
the courts to adopt any other hypothetical construction on the
ground that such construction is more consistent with the alleged
object and policy of the Act. In considering whether there is
ambiguity, the court must look at the statute as a whole and
consider the appropriateness of the meaning in a particular

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 context avoiding absurdity and inconsistencies or
unreasonableness which may render the statute unconstitutional.

14. It is equally well settled that in interpreting a statute, effort

should be made to give effect to each and every word used by
the legislature. The courts always presume that the legislature
inserted every part thereof for a purpose and the legislative
intention is that every part of the statute should have effect. A
construction which attributes redundancy to the legislature will
not be accepted except for compelling reasons such as obvious
drafting errors. (See State of U.P. v. Dr. Vijay Anand
Maharaj [AIR 1963 SC 946 : (1963) 1 SCR 1] , Rananjaya
Singh v. Baijnath Singh [AIR 1954 SC 749 : (1955) 1 SCR 671]
, Kanai Lal Sur v. Paramnidhi Sadhukhan [AIR 1957 SC 907 :
1958 SCR 360] , Nyadar Singh v. Union of India [(1988) 4 SCC
170 : 1988 SCC (L&S) 934 : (1988) 8 ATC 226 : AIR 1988 SC
1979] , J.K. Cotton Spg. and Wvg. Mills Co. Ltd. v. State of
U.P. [AIR 1961 SC 1170] and Ghanshyamdas v. CST [AIR
1964 SC 766 : (1964) 4 SCR 436] .)

53. In the present case, not giving the word “nearest” it due meaning and
importance, would make the word „nearest‟, a surplusage, which cannot
be the intention of legislature in drafting section 50.
54. The factum independence is also stressed in Drug Law Enforcement
Field Officer's Handbook, wherein it is stated:

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 “The team should reach the locality where the target premises is
situated well before the strike time and arrange two respectable
independent residents in the area willing to witness the search
proceedings. To ensure people agree to be a part of these
proceedings, the DLEO should use a mixture of tact, gentle
persuasion and legal necessity to convince people to cooperate
with the law. In dire necessity, the DLEO can issue a legal notice
to persons requiring them to act as witnesses. Refusal to do so
when asked in writing, without reasonable cause, is an offence
under Section 187 IPC read with Section 100 Cr.P.C. Once
witnesses are identified, the DLEO should explain to them the
purpose of the search without divulging specific details and ask
them to accompany him to the target premises”

55. The sanctity of the above-mentioned Field Officer's Handbook was

discussed by the Hon'ble Supreme Court in the case titled as Shafhi
Mohammad v. State of H.P., (2018) 2 SCC 801.
56. In the light of the above judgments and facts, I am of the view that the
applicant's alleged refusal that he is unwilling to be searched is
irrelevant. The notice u/s 50 NDPS act itself is faulty in law. Therefore,
it cannot be said that accused's unwillingness to be searched in front of
an officer who is a member of the raiding team is a voluntary
expression of their desire for giving up their right to be searched. The
notice of section 50 served to the applicant clearly violates the law and
is a misdirection. As a result, I am of the opinion that the applicant was
misled into believing that his search was to be before any gazetted

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 officer and not the nearest. Further the fact was conducted before ACP
Rich pal is far from an independent search as ACP Rich pal was part of
the raiding team.
57. Hence the notice not under the mandate of section 50 question that now
arises is whether invalid notice vitiates recovery.
58. In this regard it may be relevant to refer to the observations of the
Constitution Bench in Vijaysinh Chandubha Jadeja v. State of Gujarat,
(2011) 1 SCC 609, wherein the Bench held there must be strict
compliance of Section 50 of the NDPS Act. The Bench held as
follows:-
"29. In view of the foregoing discussion, we are of the firm
opinion that the object with which the right under Section 50(1)
of the NDPS Act, by way of a safeguard, has been conferred on
the suspect viz. to check the misuse of power, to avoid harm to
innocent persons and to minimise the allegations of planting or
foisting of false cases by the law enforcement agencies, it would
be imperative on the part of the empowered officer to apprise the
person intended to be searched of his right to be searched before
a gazetted officer or a Magistrate. We have no hesitation in
holding that insofar as the obligation of the authorised officer
under sub-section (1) of Section 50 of the NDPS Act is
concerned, it is mandatory and requires strict compliance.
Failure to comply with the provision would render the recovery
of the illicit article suspect and vitiate the conviction if the same
is recorded only on the basis of the recovery of the illicit article
from the person of the accused during such search. Thereafter,
the suspect may or may not choose to exercise the right provided
to him under the said provision.
31. We are of the opinion that the concept of “substantial
compliance” with the requirement of Section 50 of the NDPS Act
introduced and read into the mandate of the said section

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 in Joseph Fernandez [(2000) 1 SCC 707 : 2000 SCC (Cri) 300]
and Prabha Shankar Dubey [(2004) 2 SCC 56 : 2004 SCC (Cri)
420] is neither borne out from the language of sub-section (1) of
Section 50 nor it is in consonance with the dictum laid down
in Baldev Singh case [(1999) 6 SCC 172 : 1999 SCC (Cri) 1080]
. Needless to add that the question whether or not the procedure
prescribed has been followed and the requirement of Section 50
had been met, is a matter of trial. It would neither be possible
nor feasible to lay down any absolute formula in that behalf.

59. The Bench rejected the idea of substantive compliance with regard
to Section 50 holding as follows :-

"31. We are of the opinion that the concept of "substantial

compliance" with the requirement of Section 50 of the NDPS Act
introduced and read into the mandate of the said section in
Joseph Fernandez and Probha Shankar Dubey is neither borne
out from the language of sub-section (1) of Section 50 nor it is in
consonance with the dictum laid down in Baldev Singh case.
Needless to add that the question whether or not the procedure
prescribed has been followed and the requirement of Section
50 had been met, is a matter of trial. It would neither be possible
nor feasible to lay down any absolute formula in that behalf."

60. Hence as has been held by the above judgment, section 50 is to be

mandatorily complied. There is no concept of substantial compliance.
In the present case, conditions under section 50 have been violated and
the procedure established has not been followed. The same give rise to
reasonable grounds for granting bail.
61. This court in BAIL APPLN. 1231/2022 titled EMEKA EMMANUEL
vs THE STATE, has granted bail when there was not substantially
complied with.

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 “I am of the view that the judgment of “Mohd. Rahis Khan vs.
State” is squarely applicable. The Section 50 of the NDPS Act has
to be complied with both, not only substantially but fully, as it is a
mandatory requirement. 9. The Hon‟ble Supreme Court as well as
this Court has clearly opined that in case Section 50 of the NDPS
Act is not complied with, the applicant is entitled to bail.”

62. Hence the notice u/s 50 is will amount to no notice in the eyes of law.
63. As regards other offences against the applicant, the applicant has been
granted bail in the other offence wherein heroin was recovered.
64. Therefore in my considered opinion, the basic requirements of Section
50 of the NDPS Act not having been complied with in the instant case,
in view of which, I am satisfied rigours of section 37 would not be an
obstacle in the release of the applicant.
65. Moreover, it is also to be seen that the Applicant is in judicial custody
since 27.10.2020 in the present case and the conclusion of the trial will
take time.
66. This court in Gurmito v. CBI, 2022 SCC OnLine Del 2316, has held
that that speedy trial forms an intrinsic part of Article 21 of the
Constitution and the denial of same may be a ground for bail in certain
circumstances/conditions.

“19. Prima Facie, it appears that the accused is not guilty of the
offence. If she is part of a criminal conspiracy as per section 29
of the Act, the same needs to be decided in the trial, where the
intricacies of the alleged crime can be delved into deeper by the
trial court and the guilt or liability, if any, can be decided, after
the trial. However, at this stage, if bail is denied without any

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 possibility of the trial concluding anytime soon, would be
infringing upon her right guaranteed under Article 21 of the
Constitution.”

67. Hence, I am of the view the applicant should be enlarged on bail on the
following conditions:

(a) The applicant shall furnish a personal bond in the sum of Rs.
50,000/- (Rupees Fifty Thousand Only) each with 01 surety in the
like amount, to the satisfaction of the Trial Court;
(b) The applicant shall not leave the country and if the applicant has a
passport, he shall surrender the same to the Trial Court;
(c) The applicant shall furnish to the IO/SHO concerned his cellphone
number on which the applicant may be contacted at any time and
shall ensure that the number is kept active and switched-on at all
times;
(d) The applicant shall drop a Google pin location from his mobile
phone to the IO concerned so as to show his whereabouts
everyday;
(e) The applicant shall not indulge in any act or omission that is
unlawful, illegal or that would prejudice the proceedings in
pending cases, if any;
(f) The applicant or his family members/relatives/friends will not
contact or try to intimidate the complainants/victims or their
family or tamper with any of the evidence in anyway.

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 68. The application along with any other application stands disposed of
accordingly.

JASMEET SINGH, J

MARCH 28th, 2023

Click here to check corrigendum, if any

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