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    • Notice of Act U/S 50 NDPS ‘not necessary’ for search of bag as it was distinct from the person of the accused: Delhi High Court
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    Notice of Act U/S 50 NDPS ‘not necessary’ for search of bag as it was distinct from the person of the accused: Delhi High Court

    Mars Posted on

    While hearing a bail application of a man incarcerated for offenses under the NDPS Act, the Delhi High Court said the requirement of notice under Section 50 under of the NDPS Act would not be “necessary” in respect of search of a bag which was thrown by the accused in this case, as the bag was separated from the body of the accused.

    The High Court, however, noted that during the personal search of the accused, the provisions of Section 50 were complied with. For context, Section 50 of the NDPS Act sets out the conditions under which the search of persons must be carried out.

    The court was considering the applicant/accused seeking bail, charged under the NDPS Act for possession of about 602 grams of heroin; the man was also arrested under the provisions of the IPC as well as the Foreigners Act. In the present case, the Court noted that the search first focused on the bag thrown by the applicant. Subsequently, a section 50 notice was given and his person was searched.

    A single judge bench composed of Judge Anish Dayal in his order it was said: “What is remarkable in the facts of the present case is that the search first concerned the bag thrown by the petitioner and then his person, but a notice under section 50 was still issued. given. This fact is also admitted by the applicant since there is an argument put forward that the notice itself was not properly drafted and omitted the word “nearest” (this issue is dealt with later in this judgment) .“.

    The High Court referred to the decision of the Supreme Court in the case State of Himachal Pradesh v Pawan Kumar (2005), where it was held that the application of section 50 only applies to a personal search and not to any external bag or article which is not part of the body. The petitioner, however, had argued that there was non-compliance with Section 50 as no notice was served for the search of the pouch.

    Taking note of the decision of the Supreme Court, the High Court said: “Taking advantage of this detailed enunciation of the Supreme Court, it is quite clear that the petitioner cannot benefit from the argument he wishes to make regarding non-compliance with the mandate of Section 50 of the NDPS before the search of the bag. Given that the bag was searched first and that it was in any event separated from his body, the requirement for a section 50 notice would not be necessary and subsequently, when his personal search was carried out, it was carried out after complying with the notice under section 50. The Court therefore finds no weakness, considering that the Supreme Court concluded conclusively that the language of the law must be read clearly and unambiguously and that since Article 50 itself includes the word “in person”, it would be interpreted strictly.”

    The prosecution said the applicant/accused attempted to flee after seeing the police, who were raiding a location after receiving secret information about the supply of heroin. While fleeing, the petitioner threw a pouch down the stairs of a house. The petitioner was later apprehended and the police took the pouch from his possession. The petitioner has been issued a notice under Section 50 of the NDPS Act. The police recovered nothing from their personal search.

    Under Section 50, the officer concerned has a duty to inform the accused of his right to be taken to the nearest Gazetted Officer or Magistrate to carry out a search of his body.

    Do not mention “nearest” in the section 50 notice

    The petitioner further contended that since the word “nearest” was not mentioned in the Section 50 notice, it was not valid. The court, however, held that failure to mention the “nearest” available officer or magistrate in the notice would not constitute a “serious procedural deficiency”.

    The Court noted that the seizure was made on April 7; the request to collect contraband samples was made on April 8 and was submitted to the FSL on April 11.

    She observed that there was no unreasonable delay in submitting the seized contraband and that samples sent to FSL within approximately 4 days would amount to “acceptable compliance”.

    Absence of independent witness during seizure

    The petitioner also raised the issue that the seizure was carried out without an independent witness or videography.

    The Court referred to the Supreme Court case Jagwinder Singh v State of Punjab (2023 LiveLaw (SC) 990), where it was observed that the requirement of an independent witness is a procedure issued and it is not necessary to prove a charge punishable under the provisions of the NDPS Act.

    The High Court observed that while an independent witness would be desirable to lend credibility to the prosecution’s story, it cannot be believed simply because of the absence of an independent witness.

    “There can be no dispute that the presence of an independent witness and videography would be desirable and would lend substantial credence to the prosecution’s case. However, if independent witnesses were unable to join the hearing, the prosecution cannot hold their hands and not seize the contraband carried by a person. Seizures are carried out in all kinds of circumstances and cannot be denied simply because no independent witness was present.

    Extended custody

    The petitioner further contended that since he has been incarcerated for over two years and only 8 out of 23 witnesses have been examined so far, he is entitled to bail on the ground that the conclusion of the trial would take a lot of time.

    The Court noted that because there are no standard guidelines for assessing what constitutes a period of “prolonged” detention, each case should be considered on its own facts and circumstances.

    He referred to various Supreme Court cases, including Rabi Prakash vs Odisha State (2023), Dheeraj Kumar Shukla v State of UP. (2023) And Man Mandal & Anr. against the State of West Bengal (2023), where bail was granted to the accused in prolonged detention.

    However, the High Court observed that in these cases the nature of the contraband seized was ganja and were based on their particular facts. He noticed, “While it may not be a formula, analysis serves as a guide. »

    In the present case, the Court notes that there was a seizure of 602 grams of heroin, which is above the threshold of 250 grams for commercial quantity. The Court held that the petitioner had not crossed the threshold laid down under Section 37 of the NDPS Act. She therefore rejected the request for bail.

    He noted, however, that the applicant was free to reapply for bail at a later stage if the trial did not take place, which would result in his continued detention.

    “The observations made in the judgment are only for the purpose of assessing the applicant’s bail and have no bearing on the merits of the case, i.e. the case of the prosecution or the accused .“, the High Court said.

    Case Title: Emeka Prince Lath v State NCT of Delhi (BAIL APPLN. 2438/2024)

    Click here to read/download the order

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