2023 (3) TMI 1529 - HC - Indian Laws

Seeking grant of regular bail - Smuggling - heroin - recovery of commercial quantity of drugs - discrepancy between the secret information and the notice under section 50 - violations of Sections 55 and 57 of the NDPS Act - non-joinder of independent parties. Discrepancy between the secret information and the notice under section 50 - HELD THAT - 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, it was mentioned that the applicant will only collect/purchase heroin from one Rashid Khan. However, in the notice u/s 50, the role of the applicant is more detailed. In the notice under section 50 it was alleged that the applicant was involved in the buying of the contraband as well as the supply - The notice is not be read with the mathematical precision and as long as the word purchase/ collect is appearing in section 50 notice, there is no material inconsistency to that an extent to render the notice as invalid. The question whether the section 50 is an afterthought can only be decided once the parties are in the witness box. A bare perusal of the refusal makes it clear that that both refusals are verbatim and identical. The same raises a suspicion in favor of the applicant and against the respondent that the section 50 notice as well as the refusal were fashioned by the Police authorities in Police Station after arrest and seizure. However, again whether it was fashioned in the police station or it is a coincidence that both refusals are verbatim and identical can only be decided once the evidence is led and trial has taken place. Alleged violations of Sections 55 and 57 of the NDPS Act - HELD THAT - In the present case, neither any report qua the seizure nor the arrest of 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 - 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 - 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. Non-joinder of independent witnesses - HELD THAT - In the present case, understandably it would have been difficult to join any public person during the search seizure and other proceeding at the spot since it was late at night. However, the raiding team has also not conducted any videography during the search and seizure - merely because independent witnesses were not present or no videography was recorded, the conclusion cannot not be drawn that accused was falsely implicated. 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 - 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 is where the violation of section 50 lies. It is correct that both the accused persons were informed that of their rights regarding personal search but the same was not informed as per the strict provisions of section 50. 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, 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. Whether invalid notice vitiates recovery? - HELD THAT - It may be relevant to refer to the observations of the Constitution Bench in Vijaysinh Chandubha Jadeja v. State of Gujarat, 2010 (10) TMI 934 - SUPREME COURT , wherein the Bench held there must be strict compliance of Section 50 of the NDPS Act. In the present case, conditions under section 50 have been violated and the procedure established has not been followed. The same give rise to reasonable grounds for granting bail. The basic requirements of Section 50 of the NDPS Act not having been complied with in the instant case, in view of which the rigours of section 37 would not be an obstacle in the release of the applicant. The applicant shall furnish a personal bond in the sum of Rs. 50,000/- each with 01 surety in the like amount, to the satisfaction of the Trial Court - the applicant should be enlarged on bail subject to fulfilment of conditions imposed - application disposed off.

Summary

Issues Involved:

1. Compliance with Section 50 of the NDPS Act.
2. Alleged violations of Sections 55 and 57 of the NDPS Act.
3. Non-joinder of independent witnesses.
4. Application of Section 37 of the NDPS Act for bail.
5. Delay in trial and right to a speedy trial.

Detailed Analysis:

1. Compliance with Section 50 of the NDPS Act:

The primary issue was whether the notice under Section 50 of the NDPS Act was served upon the applicant and if it complied with the statutory requirements. The court found discrepancies between the secret information, the FIR, and the Section 50 notice. The notice inaccurately informed the accused that they could be searched by "any" Gazetted Officer or Magistrate, rather than the "nearest" as mandated by the Act. This deviation was deemed a violation of Section 50, rendering the notice invalid. The court emphasized that the use of "nearest" ensures neutrality and independence, which was compromised in this case as the ACP, part of the raiding team, conducted the search. The court cited precedents to assert that strict compliance with Section 50 is mandatory, and failure to do so vitiates the recovery of illicit articles.

2. Alleged Violations of Sections 55 and 57 of the NDPS Act:

The applicant argued violations of Sections 55 and 57. Section 55 requires the officer-in-charge of a police station to take charge of seized articles, but in this case, the property was deposited by the first IO, SI Dilbag Singh. Section 57 mandates that a report of arrest or seizure be made to a superior officer within 48 hours, which was not initially complied with, as the report was filed later through a supplementary charge sheet. Although these sections were violated, the court noted that they are not mandatory conditions for granting bail.

3. Non-joinder of Independent Witnesses:

The absence of independent witnesses or videography during the search and seizure was raised. The court acknowledged the difficulty of securing witnesses late at night but noted that the lack of independent witnesses does not automatically imply false implication. This aligns with the precedent set in 'Kallu Khan V State of Rajasthan', where the absence of independent witnesses was not deemed sufficient to question the integrity of the prosecution's case.

4. Application of Section 37 of the NDPS Act for Bail:

Section 37 imposes stringent conditions for granting bail in cases involving commercial quantities of drugs. The court reiterated that the accused must demonstrate reasonable grounds for believing they are not guilty and unlikely to commit an offence while on bail. The court found that the violation of Section 50 provided reasonable grounds to believe the applicant might not be guilty, thus satisfying the conditions for bail under Section 37.

5. Delay in Trial and Right to a Speedy Trial:

The court considered the applicant's prolonged judicial custody since 27.10.2020 and the likelihood of further delay in trial conclusion. Citing the principle that a speedy trial is intrinsic to Article 21 of the Constitution, the court emphasized that prolonged detention without trial completion infringes on the applicant's constitutional rights.

Conclusion:

Given the violations of Section 50, the court concluded that the applicant should be granted bail. The bail was granted with conditions including furnishing a personal bond, not leaving the country, maintaining an active mobile phone, and ensuring no contact with witnesses. The application was disposed of accordingly, recognizing both the procedural lapses in the investigation and the applicant's right to a fair and speedy trial.