Notice U/S 50 NDPS Act 'Not Necessary' For Search Of Bag As It Was Separate From Accused's Person: Delhi High Court
While hearing a bail plea of a man booked for offences under the NDPS Act, the Delhi High Court said that the requirement of Section 50 notice under the NDPS Act would not be "necessary" in respect of the search of a bag which was thrown by the accused in the case, as the bag was separate from the accused's body.
The high court however noted that when the accused's personal search was conducted the provisions of Section 50 had been complied with. For context, Section 50 of the NDPS Act states the conditions under which search of persons shall be conducted.
The court was considering the bail application petitioner/accused, charged under the NDPS Act for possession of around 602 grams of heroin; the man was also booked under provisions of the IPC as well as the Foreigners Act. In the present case, the Court noted that the search was first from the bag which was thrown by petitioner. Subsequently, Section 50 notice was given and there was search of his person.
A single judge bench of Justice Anish Dayal in its order said, "What is notable in the facts of this present case, is that search was first from the bag which was thrown by petitioner and subsequently, there was search of his person, but Section 50 notice still had been given. This fact is admitted by petitioner as well since there is an argument raised that the notice itself was not properly framed and omitted the word 'nearest' (which issue is dealt subsequently in this judgment)".
The High Court referred to the Supreme Court's decision in State of Himachal Pradesh vs. Pawan Kumar (2005), where it was held that the application of Section 50 is only for a personal search and not for any bag or external article which does not form a part of their body. The petitioner had however contended that there was a non-compliance of Section 50 as there was no service of notice for searching the pouch.
Noting the apex court's decision the high court said, "Taking benefit of this detailed enunciation by the Supreme Court, it is quite clear that the petitioner cannot have the benefit of argument they wish to press in respect of non-compliance of Section 50 NDPS mandate before the bag was searched. Considering that the bag was searched first and it was separate in any event, from his body, the requirement of Section 50 notice would not be necessary and subsequently, when his personal search was done, it was done after having complied with Section 50 notice. The Court therefore, does not find any infirmity, considering that the Supreme Court has conclusively held that the language of the statute has to be read in its plain and unambiguous manner and since Section 50 itself includes the word 'in person', it would be construed strictly".
The prosecution said that the petitioner/accused tried to escape from on seeing the police, who were raiding a place after receiving secret information about heroin supply. While escaping, the petitioner threw a pouch on the stairs of a house. The petitioner was subsequently apprehended and the police took the pouch into their possession. The petitioner was served a notice under Section 50 NDPS Act. The police did not recover anything from his personal search.
As per Section 50, the concerned officer is under an obligation to inform the accused about his right to be taken to a nearest Gazette Officer or Magistrate for the conducting a search of his body.
Not mentioning 'nearest' in Section 50 notice
The petitioner further contended that as the word 'nearest' was not mentioned in the Section 50 notice, it was invalid. The court however was of the view that the failure to mention in the notice a 'nearest' available Gazetted Officer or a Magistrate would not be a 'serious procedural lapse'.
The Court noted the seizure was made on 7 April; the request for drawing of samples of the contraband was made on 8 April and was deposited with the FSL on 11 April.
It observed that there was no unreasonable delay in submitting the seized contrabands and that the samples being sent to FSL within about 4 days would amount to 'acceptable compliance'.
Absence of independent witness during seizure
The petitioner also raised the issue that the seizure was done without independent witness or videography.
The Court referred to Supreme Court case of Jagwinder Singh v State of Punjab (2023 LiveLaw (SC) 990), where it was observed that requiring an independent witness is a procedural issued and that it is not required to prove a charge attracting the provisions of NDPS Act.
The High Court remarked that while an independent witness would be desirable to give credibility to the prosecution's story, it cannot be disbelieved merely because of the absence of an independent witness.
“There cannot be any quarrel with the fact that presence of independent witness and videography would be desirable and would give substantial credence to the prosecution's case. However, simply if independent witnesses have been unable to join, the prosecution agency cannot hold their hands and not seize the contraband being carried by a person. Seizures are made in all kinds of circumstances and they cannot be disbelieved merely on the basis that no independent witness was present.”
Prolonged custody
The petitioner further contended that as he has been incarcerated for over 2 years and only 8 out of 23 witnesses have been examined so far, he is entitled to bail on the ground that the conclusion of the trial would take a long time.
The Court noted that as there are no standard guidelines to assess what would constitute a 'prolonged' period of custody, each case would have to be seen in its own facts and circumstances.
It referred to various Supreme Court cases, including Rabi Prakash v State of Odisha (2023), Dheeraj Kumar Shukla v State of U.P. (2023) and Man Mandal & Anr. v State of West Bengal (2023), where bail was granted to the accused in prolonged custody.
However, the High Court observed that in these cases, the nature of the contraband seized was ganja and were based on their peculiar facts. It remarked, “Though this cannot be formulaic, the analysis serves as a guidepost.”
In the present case, the Court noted that there was a seizure of 602 grams of heroin, which is above the threshold of 250 grams for commercial quantity. The Court was of the view that the petitioner did not overcome the threshold under Section 37 of NDPS Act. It thus dismissed the bail application.
It however noted that the petitioner was at liberty to move a fresh bail application at a later stage if the trial did not proceed, leading to his prolonged custody.
"The observations made in the judgment are purely for the purposes for assessing the bail of petitioner and shall have no bearing on merits of the matter, i.e. the case of either the prosecution or the accused," the high court said.
Case title: Emeka Prince Lath vs. State NCT of Delhi (BAIL APPLN. 2438/2024)