TaxTMI 
TaxTMI 
2024 (4) TMI 1430
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.... 3.00 a.m., the applicant, whose features matched the description given by the informant, arrived thereat. The applicant was accosted. The applicant identified himself as Eze John, a Nigerian national. 4. It is alleged, the applicant upon being apprised of the purpose of the trap, took out two transparent zip locked polythene pouchs. First pouch contained white coloured crystalline substance and the second pouch contained five red coloured small round shape substances. White substance in the first pouch was tested with the help of drug detention kit and it turned out to be MD. It weighed 64 gms. The Investigating Officer removed the cover of the round shape substances. White powder was concealed therein. When the said powder was tested with the drug detention kit, it showed positive for cocaine. It weighed 03 gms. Contraband articles were seized and labelled. A mobile phone handset with two simcards was also recovered from the possession of the applicant. The applicant was arrested. 5. As the learned Special Judge declined to exercise discretion in favour of the applicant, this application for bail. 6. An affidavit in reply is filed on behalf of NCB to oppose the prayer fo....
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...., the provisions contained in Section 50 of the Act, are not attracted. Mrs. Pai, learned Special PP, would urge that, even otherwise, the notice under Section 50 served on the applicant (page 43 of the application) indicates that the provisions contained in Section 50 of the Act, were also fully complied with. Therefore, the applicant does not deserve to be enlarged on bail. 11. I have carefully perused the material on record and given anxious consideration to the submissions canvassed across the bar. Evidently, the case is based on prior information. Information note dated 28 September 2021 purportedly made at 4.00 p.m, records that the suspect was to deliver contraband article between 2.00 a.m. to 4.00 a.m. on that night. Prima facie, the information appears to have been reduced into writing and copy thereof was forwarded to the immediate official superior. Compliance of the provisions contained in Section 42 of the Act, prima facie, appears to have been made. 12. At this stage, I do not deem it appropriate to delve into the aspect of 4/13 discrepancy in the time line sought to be highlighted by Mr. Sayed. That would be a matter for adjudication at the trial based on the e....
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....ieve that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting 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." Through this amendment the strict procedural requirement as mandated by Baldev Singh's case was avoided as relaxation and fixing of the reasonable time to send the record to superior official as well as exercise of SSP Section 100 of CrPC was included by the legislature. The effect conferred upon the previously mandated strict compliance of Section 50 by Baldev Singh's case was that the procedural requirements which may have handicapped an emergency requirement of searc....
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....ection 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the Police Officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a Gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a 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/s. State of Rajasthan [(2013) 2 SCC] and Narcotics Control Bureau v/s. Sukh Dev Raj Sodhi [(2011) 6 SCC 392]" 18. In the light of the aforesaid enunciation of law, re-adverting to the facts of the case, it is pertinent to note that the seizure panchanama is consp....
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....ch there was no reference in the panchanama), it was observed that the said attempt appeared to be an after-thought as the communication did not bear the signatures of the panchas and in the statements of the two panchas, compiled in the chargesheet, there was no mention of such intimation having been given to the accused persons. 22. Secondly, the seizure panchanama is quite elaborate. Apart from the recovery and seizure of the contraband, the seizure panchanama also records that the mobile phone handset and two sim cards were recovered from the possession of the applicant. The applicant requested the Investigating Officer to permit him to travel along with the NCB team in the government vehicle. A notice under Section 67 of the Act was issued to the applicant on the spot to present before the IO forthwith to submit his say. If all these matters could be documented in the seizure panchanama, prima facie, the omission to record the fact that the notice under Section 50 of the Act, was given to the applicant, becomes contentious. The concomitant circumstance that the applicant was shown to be arrested on 29 September 2021 at about 8.00 p.m., though the seizure panchanama was conc....