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TMI Blog2024 (10) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... search was illegal. So far as the issue of applicability of Section 50 of the NDPS Act is concerned, there are two aspects of the same. Firstly, whether Section 50 of the NDPS Act was not complied with, and secondly, whether Section 50 could at all be made applicable to the case on hand - The law in regard to compliance of mandate of Section 50, about the phrase search any person has been traversing on either side of proposition as to whether it refers only to recovery from the person or includes the bag which he may be carrying. In Pawan Kumar [ 2005 (4) TMI 549 - SUPREME COURT ] the Apex Court was considering a situation where the contraband was seized from the bag of the Applicant and not his person. It was held that Section 50 is not applicable when the search is made of the bag being carried by the person. Further, it has been held that the phrase search any person as described in Section 50 would not include the bag which was being carried by the individual and therefore, recovery of narcotics from the bag of the accused would not attract the provisions of Section 50 of the NDPS Act. The Court held that the term person under Section 50 would mean a natural person or a living ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en of Belize City, Belize with clean antecedents and good moral standing. The Applicant arrived at New Delhi from Doha via Qatar Airways flight No. QR-578 at 02:00 AM and was intercepted by Customs Officers on suspicion and was asked to scan his baggage. The two independent panchas were called and the accused along with his baggage was taken to the Customs Preventive Room for further verification. 3. The Customs Officer inquired from the accused about his carrying any contraband, to which the accused replied in a negative. Thereafter, a Notice under Section 102 of Customs Act, 1962 and under Section 50 of the NDPS Act was served by the Customs Officer in presence of the panchas. He was informed about requirement of his personal and baggage search and was also apprised of his legal rights that the search could be conducted before a Magistrate or a Gazetted Officer of Customs. The baggage of the accused was searched and an off-white colour powdery substance was recovered from false top and false bottom of the black trolley bag. On the suspicion of the recovered substance being a contraband, the same was kept in transparent poly bags marked A1 and A2 respectively and kept in plastic c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e delay in sending the alleged recovered contraband for sampling in terms of section 52-A of the NDPS Act. The seizure memo dated 30.10.2022 recorded the weight of contraband at 9950 grams while the Order dated 21.11.2022 which allowed the Application filed under Section 52-A recorded the weight at 9959 grams, i.e. a difference of total 9 grams. This discrepancy in the weight creates a doubt about the recovery of alleged contraband. 11. Further, the recovery is suspect since the Investigating Officer in the case did not have any brass seal for his shift, i.e. Shift-B and had to requisition the same from Assistant Commissioner of Shift-A. 12. Moreover, the pancha witnesses had deposed to being present throughout the proceedings, however they have not said anything in regard to the requisitioning of seal, which according to the prosecution was procured by the Assistant Commissioner, Preventive Shift-B, T-3, IGI Airport and then somehow handed over to the present I.O. and then allegedly deposited back with the Assistant Commissioner (Shift-A), T-3, IGI Airport. The version of the pancha witnesses is starkly opposite to the prosecution witnesses inasmuch as it is their case that the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own colour trolley bag, i.e. two checked-in bags and one black colour handbag. And on the basis of profiling, he was stopped and his search was conducted. After recording his statement to the effect that he did not possess any contraband substance, a Notice under section 50 of NDPS Act and another under Section 102 of the Customs Act were served upon him. 20. During the search of his baggage, two packets were recovered, which on the suspicion of being contraband, were emptied into transparent bag (Each plastic container having net weight of goods as 4.975 Kgs (total weight as 5.026 Kgs including weight of pouch as 0.051kgs; collectively weighing 9.950 Kgs). The total weight of goods in each container was 5.382 Kgs including plastic pouch and plastic container. Thus. a total of 9.950 Kgs of white colour powder/granules suspected to be narcotics substance, was recovered from the accused. The recovered substance from the black coloured trolley bag, was kept in two transparent boxes. Thereafter, the substance was tested and the result revealed that the said substance is Heroine . The substance was then seized under section 43 (a) of NDPS Act and section 110 of the Customs Act for viola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not sufficient compliance of Section 50 of NDPS Act for which reliance has been placed on State of Rajasthan vs. Parmanand, (2014) 5 SCC 345. The learned counsel has placed reliance on Aabid Khan vs. State Govt. of NCT of Delhi,2 023:DHC:8675 and Mohd. Jabir(Supra). It is argued that the Applicant is entitled to be released on bail on the sole ground of noncompliance of Section 50 of NDPS Act. 28. It is further argued by the learned counsel for the Applicant that the Prosecution s reliance on State of H.P. vs. Pawan Kumar, (2005) 4 SCC 350, to argue that the rigours of Section 50 of NDPS do not apply as the recovery was made from the bag of the Applicant and not his Person, is not tenable as there is divergence on this issue in Namdi Francis vs. Union of India, (1998) 8 SCC 534, and S.K. Raju alia Abdul Haque alias Jagga vs. State of Bengal, (2018) 9 SCC 708 , wherein the Hon ble Apex Court held that rigours of Section 50 of NDPS Act would be attracted as soon as search of a person takes place irrespective of whether contraband is recovered from the person or the bag of the detainee. In National Insurance Company Limited vs. Pranay Sethi, (2017) 16 SCC 680 , the Constitution Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t compliance by the officers. But if there is no strict compliance of any of these instructions that by itself cannot render the acts done by these officers null and void and at the most it may affect the probative value of the evidence regarding arrest or search and in some cases it may invalidate such arrest or search. But such violation by itself does not invalidate the trial or the conviction if otherwise there is sufficient material . Therefore, it has to be shown that such noncompliance has caused prejudice and resulted in failure of justice. A flaw in the sampling procedure may affect, if anything, the probative value of the evidence. The Court further observed that the provisions are directory in nature; therefore, the Court is bound to examine the prejudice which shall be caused to the petitioner and consequent failure of justice due to noncompliance. It was further observed that However, a mere noncompliance or failure to strictly comply by itself will not vitiate the prosecution. 37. Section 52A of the Act by itself does not place any specific time limit for sampling and application to the magistrate to be carried out. The Applicant has placed reliance on Standing Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted. 42. Thereafter, in Pawan Kumar (Supra) the Apex Court was considering a situation where the contraband was seized from the bag of the Applicant and not his person. It was held that Section 50 is not applicable when the search is made of the bag being carried by the person. Further, it has been held that the phrase search any person as described in Section 50 would not include the bag which was being carried by the individual and therefore, recovery of narcotics from the bag of the accused would not attract the provisions of Section 50 of the NDPS Act. The Court held that the term person under Section 50 would mean a natural person or a living unit and not an artificial person i.e., a bag or a briefcase. 43. Similarly, in Sarjudas and Anr. vs. State of Gujarat, (1999) 8 SCC 508, where the contraband was recovered from a bag hanging on the scooter, the Supreme Court held that there was no mandate of informing the person to be searched of his right under Section 50 of NDPS Act, for this was not a case where the person of the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Thamisharasi, (1995) 4 SCC 190 , clause (b) of subsection (1) of Section 37 imposes limitations on granting of bail in addition to those provided under the Code. The two limitations are: (1) an opportunity to the Public Prosecutor to oppose the bail application, and (2) satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. 7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused-respondent is concerned, are: the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression reasonable grounds means something more than prima facie grounds. It contemplates substanti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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