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TMI Blog2023 (12) TMI 1357X X X X Extracts X X X X X X X X Extracts X X X X ..... ance 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 conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S Act served upon him and he was informed that he has the right to be produced before a Magistrate or a Gazzetted Officer prior to his search or such officer can be called to the spot and his search can be conducted in his/her presence. The applicant was further informed that it is also his right to search the police officers and the private car driven by them. The applicant declined to be searched in the presence of a Magistrate or a Gazzetted Officer. v. Thereafter, a yellow colour carry bag was recovered from the applicant s right hand and was found to contain a muddy colour powder. On being tested with the field testing kit, the said powder was found to be heroin and weighed 400 gms. vi. The content was seized and a seizure memo was drawn and accordingly, the present FIR was registered under Section 21 of the NDPS Act and the applicant was arrested on 12.11.2021. vii. Upon completion of investigation, the chargesheet in the present case was filed for offences under Sections 21/29 of the NDPS Act. 3. Learned counsel appearing on behalf of the applicant submitted that the present applicant is entitled to bail on account of the non-compliance of the mandatory requirements of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice under Section 50 of the NDPS Act, bail was granted to the applicant therein for non-compliance of the said provision. 5. Learned counsel for the applicant further placed reliance on the following judgments: i. SK Raju @ Abdul Haque @ Jagga, 2018 INSC 780. ii. Sh. Akhilesh Bharti v. State, 2020:DHC:340. iii. Kamruddin v. State, 2022/DHC/004767. iv. Sachin Arora v. State Govt. NCT of Delhi, 2023:DHC:5808. v. Vinay v. State of NCT of Delhi, 2023:DHC:5809. vi. Emeka Emmanuel v. The State, Order dated 18.11.2022 passed in BAIL APPLN. 1231/2022. vii. S. Kasi v. State, AIR 2020 SC 2921. 6. Per contra, learned APP for the State submitted that a notice was duly served upon the applicant, clearly mentioning that he has the right to be searched in the presence of a Gazetted Officer or a Magistrate. It was submitted that the non-mentioning of the word nearest alone cannot amount to non-compliance of Section 50 of the NDPS Act. It was further submitted that the argument advanced on behalf of the applicant is not tenable in law as no statute or precedent prescribes the exact form or language which is to be used for a notice under Section 50 of the NDPS Act. 7. Learned APP submitted that wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion used in Section 37(1)(b)(ii) is reasonable grounds . The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. *** *** *** 11. The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. (emphasis supplied) Further, more recently, in Mohd. Muslim alias Hussain v. State (NCT of Delhi), 2023 SCC OnLine SC 352, the Hon ble Supreme Court held as under: 21. The st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt 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 obvious drafting errors. (See State of U.P. v. Dr. Vijay Anand Maharaj [AIR 1963 SC 946 : (1963) 1 SCR 1], Rananjaya Singh v. Baijnath Singh [AIR 1954 SC 749 : (1955) 1 SCR 671], Kanai Lal Sur v. Paramnidhi Sadhukhan [AIR 1957 SC 907 : 1958 SCR 360], Nyadar Singh v. Union of India [(1988) 4 SCC 170 : 1988 SCC (L S) 934 : (1988) 8 ATC 226 : (1988) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 14. 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 (supra), has taken note that the word nearest has been used in the statute with a certain intention, as discussed hereinabove in the aforesaid judgment. 15. 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 SCC 299, wherein it was held as under: 16. One another important question that arises for consideration is whether failure to comply with the conditions laid down in Section 50 of the NDPS Act by the empowered or authorised officer while conducting the search, affects the prosecution case. The said provision (Section 50) lays down that any officer duly authorised under Section 42, who is about to search any person under the provisions of Sections 41, 42 and 43, shall, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rosecution, Section 50 is enacted. *** *** *** 20. In Miranda v. Arizona [384 US 436 : 16 L Ed 2d 694 (1966)] the Court, considering the question whether the accused be apprised of his right not to answer and keep silent while being interrogated by the police, observed thus: At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. For those unaware of the privilege, the warning is needed simply to make them aware of it the threshold requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere. It was further observed thus: The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of foregoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer at the time of giving notice under Section 50 of the NDPS Act. 18. 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. 19. In totality of the facts and circumstances of the case, the present application is allowed. 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 the following conditions: i. The nominal roll shows that the applicant is residing at Village Mohanpur Dharuva, Tehsil Faridpur, District Bareilly, Uttar Pradesh. In case of any change of address, the applicant is directed to inform the same to the learned Trial Court and the Investigating Officer. ii. The applicant shall not leave India without the prior permission of the learned Trial Court. iii. The applicant is directed to give all his mobile numbers to the Investigating Officer and keep them ope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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