TaxTMI 
TaxTMI 
2021 (10) TMI 329
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....was assembled headed by Anand Kumar, I.O. left for Hazrat Nizamudidn Railway Station. b) At the Railway Station, two lady constables Suman Lata and Sudesh Kumari agreed to join the team as independent witnesses. At the designated time of boarding, the Petitioner was seen & identified by the NCB officials and stopped by them and asked questions about her trip and destination. The Petitioner introduced herself as Sonia Naik, showed them her rail ticket and identification card. c) Mr. Anand Kumar, I.O. after ascertaining her details served a Section 50 Notice on the Petitioner and informed her of her rights of being searched by a Gazetted office or in the presence of Magistrate. The Petitioner replied in writing on the notice that she did not want to be checked in the presence of a G.O./ Magistrate. The I.O. offered his team to be checked by the Petitioner which she declined. A lady officer duly conducted personal searched on her in the presence of an Independent witness. Nothing was found on her body. The lady officer then checked her maroon bag where amongst other things a gray bag with marking of Baby was found to be a decoy and upon tearing open the bag two plastic packets wer....
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....ta Roop Raani Maggo Hospital for treatment for the injuries he had sustained. Search of his house indicated that he was in the process of destroying the narcotic drug in his possession to avoid getting nabbed and two measuring scales were found from there. g) Investigation was further done and statements of all witnesses vis a vis the arrest, disclosures, discoveries were duly recorded and narcotic samples were sent to CRCL Pusa Road for testing. A report under Section 57 of the NDPS Act 1985 regarding the seizure of the two-baby carrier, weighing machine, torn polythene wet with water was submitted, V.V. Singh Superintendent NCB on 24.02.2018 and a report of the arrest of the Petitioner was submitted too. 3. Material on record discloses that the Petitioner was in constant touch with the other accused. 4. The Ld. Special Court in SC No. 267 of 2018, Patiala House vide order dated 17.8.2019 rejected the bail of the Petitioner. The Court while dismissing the bail reasoned that the Petitioner was caught with narcotics, in commercial quantity, in her possession at a Nizamuddin Railway Station and on her disclosure statements to the I.O., Charles Ezih, another Nigerian national, wer....
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....s is a clear violation of Section 50 of the NDPS Act. The learned counsel for the petitioner states that though the petitioner had waived off the presence of any Gazetted Officer and has said that NCB lady officers can carry out the search. But that does not absolve the duty of the State to fulfill Section 50 of the NDPS Act. The learned counsel for the petitioner places reliance on the judgment of the Supreme Court in Arif Khan v. State of Uttarakhand, (2018) 18 SCC 380. He further places reliance on the judgment of the Supreme Court in Harbeer Singh v. Sheeshpal, (2016) 16 SCC 418, to contend that delay in recording of statements of the prosecution witnesses under Section 161 CrPC, although those witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case. He further submits that the Petitioner is a educated girl with no criminal record and has deep roots in the society. He further contends that the petitioner has retracted her statement. 10. The learned counsel for the petitioner places reliance on the observations made by this Court while extending the Bail ....
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....as found in his possession, and Moses Henry Oyendu from whose house 660 Gms of Methamphetamine was seized. Her statement, he argued, led to unearthing of a nexus of persons who have been involved in illicit narcotic trading, the two others have been declared Proclaimed Offender and the search for them is ongoing. He argued that in the complaint it has been stated that the other accused Charles Ezih & Moses Henry Oyendu have been living in India illegally as their Visa is expired and their Passports were ingenuine & fabricated. 14. A perusal of the record indicates that the Petitioner was traveling from Delhi to Bombay by Train from Hazrat Nizamuddin Railway Station when she was intercepted by officials of the NCB on a secret tip and served a notice under Section 50 NDPS Act and she was informed of her rights available under Section 50 of the NDPS Act and was given an option to be searched before a Gazetted Officer or a Magistrate but the petitioner waived off her right under Section 50 of the NDPS Act and had agreed for search by any NCB lady officer. Accordingly, two lady railway police officials had been requested to conduct the search. The Petitioner after being taken into cust....
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.... strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a gazetted officer or a Magistrate. (See also Ashok Kumar Sharma v. State of Rajasthan [Ashok Kumar Sharma v. State of Rajasthan, (2013) 2 SCC 67 : (2013) 1 SCC (Cri) 829] and Narcotics Control Bureau v. Sukh Dev Raj Sodhi [Narcotics Control Bureau v. Sukh Dev Raj Sodhi, (2011) 6 SCC 392 : (2011) 2 SCC (Cri) 981] .)" 17. A Division Bench of this Court has considered the issue of waiver of Section 50 and the observation made in Arif Khan (supra) and it has observed as under: "21. Coming now to the emphasis placed on behalf of the applicant/accused on the judgment rendered by the Supreme Court in Arif Khan @ Agha Khan (supra), the question that needs to be considered is whether that decision is an authority for the proposition that notwithstanding the person proposed to be searched has, after being duly apprised of his right to be searched before a Gazetted Officer or Magistr....
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....a (supra) held that the same has settled the position of law in this behalf to the effect that, whilst it is imperative on the part of the empowered officer to apprise the person of his right to be searched only before a Gazetted Officer or Magistrate; and this requires a strict compliance; the Hon'ble Court simultaneously proceeded to reiterate that, in Vijaysinh Chandubha Jadeja (supra) "it is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act". In this view of the matter, the reliance placed by counsel for the applicant/accused on the decision of the Supreme Court in Arif Khan @ Agha Khan (supra), in our respectful view does not come to his aid." 18. Grant or rejection of bail under the NDPS Act is governed by Section 37 of the NDPS Act. The Supreme Court in State of Kerala V. Rajesh, (2020) 12 SCC 122, has reiterated the principles on which bail can be granted under the NDPS Act. "19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 CrPC, but is also subject to the limitation placed by Section 37 which commenc....
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..... 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 at hand the High Court seems to have completely overlooked the underlying object of Section 37. It did not take note of the confessional statement recorded under Section 67 of the Act" 20. The Supreme Court in State of M.P. v. Kojad, (2001) 7 SCC 673, embarked to elucidate as to why bail conditions under the NDPS are stringent to the extent of being severe & uncompromising, it held as follows: "5.....The purpose for which the Act was enacted and the menace of drug trafficking which it intends to curtail is evident from its scheme. A perusal of Section 37 of the Act leaves no doubt in the mind of the Court that a person accused of an offence, punishable for a term of imprisonment of 5 years or more, shall generally be not released on bail. Negation of Bail is the ....