9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (12) TMI 1357 - HC - Indian LawsSeeking grant of regular bail - application under Section 439 of the Code of Criminal Procedure, 1973 (CrPC) read with Section 36A(3) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) - right to be searched in the presence of a Gazetted Officer or a Magistrate - non-compliance of Section 50 of the NDPS Act. HELD THAT - The contention of learned APP for the State that the question of being search in the presence of the nearest Gazetted Officer or Magistrate would arise only if the accused had exercised his option in terms of Section 50 of the NDPS Act, is not tenable. The right of the accused, as contained in Section 50 of the NDPS Act is mandatory in nature and the same has been emphasized time and again in the various judicial precedents. The co-ordinate bench of this Court, in MOHD. JABIR VERSUS STATE OF NCT OF DELHI 2023 (3) TMI 1529 - DELHI HIGH COURT , has taken note that the word nearest has been used in the statute with a certain intention. The relevance of a notice under Section 50 of the NDPS Act and its mandatory compliance was clearly spelt out by the Hon ble Supreme Court in State of Punjab v. Balbir Singh 1994 (3) TMI 173 - SUPREME COURT , wherein it was held that ' When such is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred under Section 50 in the context is all the more important and valuable. Therefore it is to be taken as an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate. Thus the provisions of Section 50 are mandatory. '. A perusal of the 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 to the effect that the word nearest has been used in the statute with a certain intention and cannot be ignored by the concerned Investigating Officer at the time of giving notice under Section 50 of the NDPS Act. As per nominal roll dated 10.05.2023, the applicant has been in judicial custody for 01 year 05 months and 28 days. The investigation in the present case is complete, the chargesheet stands filed and the trial is underway. No useful purpose will be served by keeping the applicant in judicial custody any further. The applicant is admitted to bail upon his furnishing a personal bond in the sum of Rs. 50,000/- alongwith two sureties of like amount to the satisfaction of the learned Trial Court/Link Court, further subject to fulfilment of conditions imposed - the present application is allowed.
Issues Involved:
1. Non-compliance with Section 50 of the NDPS Act. 2. The impact of non-compliance on the applicant's right to bail. 3. The interpretation and mandatory nature of Section 50 of the NDPS Act. 4. The relevance of the term "nearest" in Section 50 of the NDPS Act. 5. The implications of the applicant's refusal to be searched in the presence of a Gazetted Officer or Magistrate. 6. The conditions for granting bail under Section 37 of the NDPS Act. Detailed Analysis: 1. Non-compliance with Section 50 of the NDPS Act: The primary issue in this case was the alleged non-compliance with Section 50 of the NDPS Act, which mandates that a person about to be searched must be informed of their right to be searched in the presence of a Gazetted Officer or Magistrate. The applicant argued that the notice served did not mention the right to be searched before the "nearest" such officer, thus violating the statutory requirement. The court examined the language of the notice and found that it did not comply with the explicit requirement of Section 50, as it omitted the word "nearest," which is crucial for ensuring neutrality and independence during the search. 2. The impact of non-compliance on the applicant's right to bail: The court considered whether the non-compliance with Section 50 affected the applicant's entitlement to bail. It was argued by the applicant's counsel that the non-compliance rendered the search illegal and thus weakened the prosecution's case, making the applicant eligible for bail. The court agreed, noting that the failure to comply with Section 50's mandatory provisions undermined the prosecution's case and justified granting bail. 3. The interpretation and mandatory nature of Section 50 of the NDPS Act: The court emphasized that Section 50 of the NDPS Act is mandatory, as affirmed by various judicial precedents. The provision is designed to safeguard the rights of individuals against potential misuse of power by law enforcement officers. The court cited the Supreme Court's decision in State of Punjab v. Balbir Singh, which underscored the importance of informing the accused of their right to be searched in the presence of a Gazetted Officer or Magistrate, thereby ensuring the authenticity and credibility of the search process. 4. The relevance of the term "nearest" in Section 50 of the NDPS Act: The court highlighted the significance of the term "nearest" in Section 50, noting that it was intentionally included by the legislature to ensure impartiality during searches. The court referenced a coordinate bench's decision in Mohd. Jabir v. State of NCT of Delhi, which stressed that the omission of "nearest" in the notice invalidated the search procedure. The court agreed with this interpretation, stating that the word "nearest" cannot be treated as surplusage and must be given due meaning and importance. 5. The implications of the applicant's refusal to be searched in the presence of a Gazetted Officer or Magistrate: The prosecution contended that the applicant's refusal to be searched before a Gazetted Officer or Magistrate negated the need to mention "nearest" in the notice. However, the court rejected this argument, asserting that the right to be searched in the presence of the "nearest" officer is independent of the accused's exercise of their option. The court maintained that the notice's failure to include "nearest" misled the applicant regarding their rights, rendering the search invalid. 6. The conditions for granting bail under Section 37 of the NDPS Act: The court considered the conditions for granting bail under Section 37 of the NDPS Act, which requires the court to form a reasonable belief that the accused is not guilty of the alleged offense. The court referenced the Supreme Court's decision in Union of India v. Shiv Shankar Kesari, which clarified that "reasonable grounds" mean more than prima facie grounds and require substantial probable causes. The court concluded that the applicant's prolonged judicial custody, coupled with the non-compliance of Section 50, justified granting bail. Conclusion: The court granted bail to the applicant, emphasizing that the non-compliance with the mandatory provisions of Section 50 of the NDPS Act undermined the prosecution's case. The applicant was admitted to bail upon furnishing a personal bond and complying with specific conditions, including not leaving India without permission and not tampering with evidence. The court clarified that its observations were limited to the bail application and did not reflect on the merits of the case.
|
