2024 (12) TMI 1810

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....RDER Leave granted. The impugned judgment dated 28.03.2023 grants bail to the respondent, Mohd. Jabir, on the ground of violation of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ["NDPS Act", for short], as the notice under the provision, though given, had used the words "any Gazetted Officer". The impugned judgment holds that the words "nearest Gazetted Officer" should have been used and therefore Section 50 was contravened. In the counter affidavit filed by the respondent, Mohd. Jabir, it is stated that, following the judgment of the High Court, bail has been granted in a large number of matters. Section 50 of the NDPS Act reads as under: - "50. Conditions under which search of persons shal....

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....ated such search and within seventy-two hours send a copy thereof to his immediate official superior." The provision vide sub-section (1) mandates that when an officer duly authorized under Section 42 is about to search a person under the provisions of Sections 41, 42 or 43, he shall, if the person about to be searched so requires, take the person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. It is obvious that the intent behind the provision is to ensure that the person about to be searched is made aware of the option to be taken before a third person other than the one who is conducting the search. Use of the expression "nearest" refers to th....

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....ate. We are satisfied that in the present case, there is compliance with the said provision. The recovery in the present case is 500 gms. of heroin, which is a substantial commercial quantity. It is also pointed out and accepted that the respondent, Mohd. Jabir, is involved in another case, being First Information Report No. 217/2019, in which the quantity involved was an intermediate quantity. The respondent is on bail in the said case. In view of the aforesaid position, we set aside the impugned judgment and allow the present appeal. The respondent, Mohd. Jabir, will surrender on or before 27.12.2024. In case he does not surrender by the said date, the police authorities/courts will take steps to detain and arrest the respondent,....