TaxTMI 
TaxTMI 
2023 (3) TMI 1529
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....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 wa....
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.... 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 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 witnes....
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....s on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions 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....
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....ng 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 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 "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 a....
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....ceived 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" 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 a....
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....es seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer 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: No. of FIR from whom taken and from what Place Date of deposit and name of depositor Description of Property Signature of recipient ( including person by whom dispatch) DD No. 8A dated 27.10.20 20 Narcotic Cell/ON D FIR No. 637/2020 U/s 21/29 NDPS ACT P.S. Bhalswa Dairy SI Dilbagh Singh No. 4857/D Narcotic Cell/ON Dt. 27/10/20 D Memo Regarding Seizure Of Heroin And A Black Bag In the presence of the witnesses mentioned hereinafter, the cursory search of Mr. Waseem S/o....
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.... 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 ....
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....sent 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 "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 occu....
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....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. 50. In my ....
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....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: "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....
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....he 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 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 ....