TaxTMI 
TaxTMI 
2023 (3) TMI 1529
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....aking 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 wa....
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....ted 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 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....
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....h 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 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 "S....
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.... 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 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 inf....
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.... applicant reads as under: 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" 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, ....
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....re 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. Section55 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 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 a....
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....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. 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 stresse....
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....ing with possession of any narcotic drug or psychotropic substance, or controlled 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 section 100 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 w....
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....f 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 pa....
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....d 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: "The team should reach the locality where the target premises is situated well before the strike time and arra....
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....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 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....
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....rs 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 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. 5....
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....ला चौक पर समय करीब 9:30 pm a 1130 pm बीच आà¤à¤—ा और वहाठसे हटाईन किठलालाने खार से पूछताछ कर अपनी तसलà¥à¤²à¥€ की और 8.000 लिपर मà¥à¤–à¥à¤¬à¤° को insp. विजà¥à¤¯à¤¾à¤¨à¥à¤²à¥‡ साहब के office मे उनके समठपेश गया के इतका मनवरी के बारे में बतलाया, 'rsp. D. ने मà¥à¤–बर से पूछताछ कर अपनी तसलती की प इतकà¤....
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....‹ हेरोइन की सपà¥à¤²à¤¾à¤‡ (खरीद फरोकà¥à¤¤) करने आठहै। आपके कबà¥à¤œà¥‡ से हैरोइन मिलने की संà¤à¤¾à¤µà¤¨à¤¾ है। जिसके लिठआपकी तलाशी ली जानी है। आपका यह कानूनी अधिकार है की आप अपनी तलाशी किसी राजपतà¥à¤°à¤¿à¤¤ अधिकारी या मैजिसà¥à¤Ÿà¥à¤°à¥‡à¤Ÿ के सामने करवा सकते है व अपनà....
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....ll/OND Date 27.10.2020 Document 4 नोटिस पà¥à¤°à¤¾à¤ªà¥à¤¤ किया जिसको पढ़कर मैंने समठलिया आपने मà¥à¤à¥‡ राजपतà¥à¤°à¤¿à¤¤ अधिकारी व मैजिसà¥à¤Ÿà¥à¤°à¥ˆà¤Ÿ का मतलब समठदिया है मै अपनी तलाशी किसी राजपतà¥à¤°à¤¿à¤¤ अधिकारी या मैजिसà¥à¤Ÿà¥à¤°à¥‡à¤Ÿ के सामने नहीं कराना चाहता और ना ही पà¥à¤²à¤¿à¤¸ के लोगों व उनकी गà....
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....ी में उसके कबà¥à¤œà¥‡ से बरामद काले रंग का रेकà¥à¤¸à¥€à¤¨ पिटà¥à¤ ू बैग जिस पर सफेद रंग से अंगà¥à¤°à¥‡à¤œà¥€ मे fasttrack लिखा है व उसी कंपनी लोगों à¤à¥€ लगा है बैंग को लटकाने के à¤à¤¿à¤œà¤µà¤¾à¤ˆ गई। लिठदो तनया के फà¥à¤°à¤¨à¥à¤Ÿ में दो पॉकेट है। को लेकर चैक किया जो बैग के अंदर à¤à....