TaxTMI 
TaxTMI 
2023 (12) TMI 1357
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....an (the applicant) who is involved in supply of heroin in Delhi would come near the Rajokri Flyover and if a raid is conducted he can be apprehended with a huge quantity of heroin. ii. Acting on the said information, a raid was conducted and at 10:10 PM, a person wearing a blue colour t-shirt and light blue colour jeans was seen coming on foot carrying a yellow colour cloth carry bag. The said person was identified by the secret informer as the applicant. iii. After a few minutes, when the applicant is about to leave, the police team apprehended him. He was informed about the secret information regarding his alleged involvement in supply of heroin and that there was a possibility of recovery of contraband from him. iv. Thereafter, a notice under Section 50 of the NDPS Act served upon him and he was informed that he has the right to be produced before a Magistrate or a Gazzetted Officer prior to his search or such officer can be called to the spot and his search can be conducted in his/her presence. The applicant was further informed that it is also his right to search the police officers and the private car driven by them. The applicant declined to be sea....
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.... record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior." (emphasis supplied) 4. It was submitted that in the present case, the notice under Section 50 served upon the applicant stated that he has the right to be searched in the presence of any Gazetted Officer or Magistrate and did not stipulate that he has a right to be searched in the presence of the 'nearest' Gazetted Officer or Magistrate, and therefore, the provision was not complied with in the manner it ought to have been done. In support of the said contention, learned counsel for the applicant placed reliance on a judgment dated 28.03.2023 passed by a coordinate bench of this Court in BAIL APPLN. 1725/2022 titled 'Mohd. Jabir v. State of NCT of Delhi', wherein in a similar case where the word 'nearest' was not mentioned in the notice under Section 50 of the NDPS Act, bail was granted to the applicant therein for non-compliance of the said provision. 5. Learned counsel for the applicant further placed reliance on the following judgments: i. SK Raju @ Abdul Haque @ Jagga, 2018 INSC 780. ii. Sh. Akh....
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....Agha Khan v. The State of Uttarakhand, 2018 INSC 426. ii. The State of Punjab v. Baldev Singh, 1999 INSC 282. iii. Prabha Shankar Dubey v. State of Madhya Pradesh, 2003 INSC 686. iv. Nabi Alam alias Abbas v. State (Govt of NCT of Delhi), 2021:DHC:1974. 10. Heard learned counsel for the parties and perused the record. 11. The primary ground on the basis of which bail has been sought in the present case is the alleged non-compliance of Section 50 of the NDPS Act. Learned APP for the State contended that the same is a matter for trial and the cannot be looked into at this stage. The said contention cannot be sustained because this Court, for the purposes of deciding the present application within the contours of Section 37 of the NDPS Act, has to examine the legal issues raised herein. The Hon'ble Supreme Court, in Union of India v. Shiv Shankar Kesari, (2007) 7 SCC 798, while explaining the term 'reasonable ground' used in Section 37(1)(b)(ii) of the NDPS Act, held as under: "7. The expression used in Section 37(1)(b)(ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable ca....
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....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 i....
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....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 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." 13. In view of the aforesaid, the contention of learned APP for the State that the question of being search in the presence of the 'nearest' Gaze....
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....cer to inform the person to be searched of his right that if he so requires to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right. *** *** *** 18. Under the Act wide powers are conferred on the officers and deterrent sentences are also provided for the offences under the Act. It is obvious that the legislature while keeping in view the menace of illicit drug trafficking deemed it fit to provide for corresponding safeguards to check the misuse of power thus conferred so that any harm to innocent persons is avoided and to minimise the allegations of planting or ....
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....the same was not recorded by him, as required under Section 164 of the CrPC. While dealing with the aforesaid situation, the Privy Council observed and held as under: "The rule which applies is a different and not less well recognised rule, namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden." 17. In the present case, notice under Section 50 of the NDPS Act given to the applicant reads as under: With regard to the aforesaid notice, it is the case of the prosecution that the present applicant refused to be searched before a Gazzetted Officer or a Magistrate and therefore, the question of him being searched before 'nearest' such officer does not arise. A perusal of the aforesaid notice reflects that the word 'nearest' does not find any mention as stated hereinabove. The said word is in the language of the section itself. The raiding officer in the present case ought to have given the said option to the applicant. This Court is in agreement that the judgment of co-ordinate bench in Mohd. Jabir (supra) to the effect that the word 'nearest' has b....
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....िद S/O मà¥à¤¨à¥à¤¨à¥‡ खान R /o Village Mohanpur PS Faridpur District Bareilly, UP, Present address Munna Meat Wali Gali C/o Ajay Kapashera, Delhi. आयॠ32 वरà¥à¤· को इस नोटिस के माधà¥à¤¯à¤® से सà¥à¤šà¤¿à¤¤ किया जाता है की पà¥à¤²à¤¿à¤¸ के पास इतला है की आप दिलà¥à¤²à¥€ में थोक व परचà¥à¤¨ में हेरोइन की सपà¥à¤²à¤¾à¤ˆ करने का काम करते हो व आज à¤à¥€ आप इस समह यहाठपर किसी को Herion की सपà¥à¤²à¤¾à¤ˆ देà....
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.... Narcotics Cell, Crime Branch 11/11/2021 ASI Om Prakash No 1033 / Crime N. Cell Crime Branch मैंने आपके दवारा दिठनोटिस को पà¥à¤°à¤¾à¤ªà¥à¤¤ कर लिया है आपने मà¥à¤à¥‡ राजपतà¥à¤°à¤¿à¤¤ अधिकारी व मजिसà¥à¤Ÿà¥à¤°à¥‡à¤Ÿ का मतलब à¤à¥€ अचà¥à¤›à¥€ तरह समà¤à¤¾ दिया है मैं अनपढ़ हॠव आपने नोटिस को पढ़कर मेरे कानूनी अदिकार के बारे में अचà¥à¤›à¥€ तरह से समà¤à¤....