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TMI Blog2023 (3) TMI 1529X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vations 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. - Hon'ble Judges Jasmeet Singh, J. For the Appellant : U.A. Khan, Shahrukh Khan and Ali Aariz, Advocates For Respondents : Y.S. Chauhan, APP JUDGMENT Jasmeet Singh, J. 1. This is an application seeking regular bail in FIR bearing No. 637/2020, U/s 21/29 NDPS Act, P.S. Bhalswa Dairy, Delhi dated 28.10.2020. 2. The facts of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S Bhojipura, District Bareilly, UP aged about 28 years and second as Mohd. Jabir (the applicant herein) S/o Matloob R/o D-1/764, J/Colony, Bhalswa Dairy, Delhi aged about 32 years. 8. The prosecution further states that notices U/s 50 NDPS Act were served. Post which their replies were obtained on the body of their respective notices in their own hand writing. Thereafter ACP/Operation/Outer North Distt. was called at spot and in the presence of ACP/Operation their search was carried out. And 500 gm of heroin was recovered from each person separately. 9. Thereafter investigation was carried out and after completion of the investigation the charge sheet was filed against the applicant U/s 21/29 NDPS Act before the court of Sh. Gagandeep Singh, ASJ, North Distt., Rohini Courts, Delhi. Vide order dated 23.05.2022 charges U/s 21/29 NDPS Act were framed against the applicant. The matter is at the stage of the prosecution evidence. 10. The Trial Court was pleased to dismiss the regular bail application of the applicant vide order dated 06.05.2022, observing that the present case is related to the commercial quantity and therefore, the applicant is not entitled to be released on regular ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 217/19 dt 26/07/2019 u/s 21/29 NDPS Act, P.S Crime Branch 19. T he case involves recovery of commercial quantity of drugs hence the provisions of section 37 shall apply stringent bail condition shall apply. Analysis: 20. I have heard the learned counsels for the parties. In cases involving commercial quantity, rigors of section 37 have to be met. The Section 37 states as under:- 37. Offences to be cognizable and non-bailable.-(1) Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974)- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter of bail under the NDPS Act is indeed uncalled for. [emphasis added] 14. To sum up, the expression reasonable grounds used in clause (b) of Sub-Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail. 15. We may clarify that at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who in turn enquired the said Informer to his satisfaction. Thereafter, he telephonically informed the ACP Operation/OND Sh. Ricch Pal regarding the information received at around 08:07 PM at which the ACP gave orders to conduct an immediate raid in order to carry out the necessary legal proceedings. The report regarding the receipt of information has been registered. A copy of the said report has been separated and handed over to Insp. Brijpal Singh for proceedings U/s 42 NDPS Act. Sd/-(Illegible) SI Dilbagh Singh, No. 4857/D (...sic...) 26. As is clear from the above, one person namely Wasim was to procure the heroin from one Rashid of Bareilly. As it transpired, that on that day also, Wasim procured the heroin to applicant near Bhalswa Chowk in between 9:30 to 11:30 pm. Even the FIR states that at about 7:45 pm, the secret informer came in the office of Narcotic Cell, Outer North District, Delhi and informed SI Dilbag Singh that one person namely Wasim procure the heroin from one Rashid from Bareilly UP and, supply the same in Delhi to one Mohd. Jabir. Today also, Jabir would come near Bhaslwa Chowk in between 9:30 pm to 11:30 pm to take the supply from Wasim and will go to.. 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e meaning of Gazetted Officer and Magistrate. I don't want myself to be searched in the presence of any Gazetted Officer or Magistrate neither want to search the Police personnel and their Vehicle. You can conduct my search. Sd/- Jabir 27.10.2020 Witness: 1. Sd HC Sandeep Kumar 2. Sd Ct. Vinod Sd/- Dibag Singh No. 4857/D Narcotics Cell/OND Date: 27.10.2020 (I) have received the notice and read over and understood the same. You have made me understand the meaning of Gazetted Officer and Magistrate. I don't want myself to be searched in the presence of any Gazetted Officer or Magistrate neither want to search the Police personnel and their Vehicle. You can conduct my search. Sd/- Waseem Khan 27.10.2020 Witness: 1. Sd HC Sandeep Kumar 2. Sd Ct. Vinod Sd/- Dibag Singh No. 4857/D Narcotics Cell/OND Date: 27.10.2020 31. 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 polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same along with the transparent polythene bag was found to be at 500 grams on the Electronic Weighing Machine. The Heroin so recovered was kept in the same transparent polythene bag after tying with the help of the rubber band and assigned mark A . It was kept in the transparent plastic box and the box was converted into a parcel by way of closing its cover with the help of medical tape. Which was also assigned mark A . The same was sealed with the seal of SK by me. The recovered Black coloured rexine bag was separately converted into a parcel with the help of white cloth piece. Today on 28.10.2020, the heroin mentioned in this memo was sent through HC. Rajesh No. 1074/OND to Rohini Court Delhi vide RC No. 177/21/20. Sd/- 28.10.2020 34. The violation of section 57 NDPS Act is also alleged by the applicant. Section 57 states: whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest of seizure to his immediate official superior 35. In the present case, neither any report qua the seizure nor the arrest of the accused was prepared either by the first 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under which search of persons shall be conducted.- (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shrined in Section 50 of the NDPS Act is that an accused should be made aware of his right to be brought before a Magistrate or a Gazetted Officer prior to a personal search. Such offer may be oral or in writing but the terms of the offer must be clear, unequivocal and not create confusion in the mind of an accused with regard to the lawful requirements prior to the search in any manner whatsoever. 47. As is clear from the above, the emphasis on the word nearest is important since it ensures independence. In deviating from the provisions as laid down in section 50, the IO practiced a third option of having the search conducted by someone who was part of the operation of this particular alleged drug seizure. The IO practiced a third option which is unknown to law. 48. The ACP was the part of the raiding team and it was on his direction the entire investigation was initiated, could not be called an independent officer. He was after all the Gazetted Officer who had proceeded to the place of occurrence after entertaining reasonable belief that the accused persons may be carrying narcotic substance and hence cannot be said to be an independent person before whom the law contemplates a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne meaning, no question of construction of statute arises, for the Act speaks for itself. Courts are not concerned with the policy involved or that the results are injurious or otherwise, which may follow from giving effect to the language used. If the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In considering whether there is ambiguity, the court must look at the statute as a whole and consider the appropriateness of the meaning in a particular context avoiding absurdity and inconsistencies or unreasonableness which may render the statute unconstitutional. 14. It is equally well settled that in interpreting a statute, effort should be made to give effect to each and every word used by the legislature. The courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. A construction which attributes redundancy to the legislature will not be accepted except for compelling reasons such as ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 57. Hence the notice not under the mandate of section 50 question that now arises is whether invalid notice vitiates recovery. 58. In this regard it may be relevant to refer to the observations of the Constitution Bench in Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609, wherein the Bench held there must be strict compliance of Section 50 of the NDPS Act. The Bench held as follows:- 29. In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HE STATE, has granted bail when there was not substantially complied with. I am of the view that the judgment of Mohd. Rahis Khan vs. State is squarely applicable. The Section 50 of the NDPS Act has to be complied with both, not only substantially but fully, as it is a mandatory requirement. 9. The Hon'ble Supreme Court as well as this Court has clearly opined that in case Section 50 of the NDPS Act is not complied with, the applicant is entitled to bail. 62. Hence the notice u/s 50 is will amount to no notice in the eyes of law. 63. As regards other offences against the applicant, the applicant has been granted bail in the other offence wherein heroin was recovered. 64. Therefore in my considered opinion, the basic requirements of Section 50 of the NDPS Act not having been complied with in the instant case, in view of which, I am satisfied rigours of section 37 would not be an obstacle in the release of the applicant. 65. Moreover, it is also to be seen that the Applicant is in judicial custody since 27.10.2020 in the present case and the conclusion of the trial will take time. 66. This court in Gurmito v. CBI, 2022 SCC OnLine Del 2316, has held that that speedy trial forms an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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