S.50 NDPS Act | Proforma With Less Desirable Option Of 'No Objection To Search By Customs Officer' Instead Of Magistrate Deplorable: Delhi HC

The Court stated that proforma notices under Section 50 should ideally have the two options: first, that the person requires the personal search to be done before a Gazetted Officer/Magistrate and second, that the person to be searched has no objection to being searched by an officer present (lady officer in case the person to be searched is female).

A single judge bench of Justice Anish Dayal was considering a woman's bail application booked for offences under Sections 8/21/23/28 of the NDPS Act.

The prosecution's case is that commercial quantity of over 1,000 grams of heroin was recovered from the trolley bag of the applicant at the Delhi airport. During the search, the custom officials found 107 capsules in her bag and when they were cut open, off-white powdery substance was found inside them. The contents of all the capsules were put in a transparent plastic box and sample was taken from the mixed contents of all the capsules.

Notice under Section 50 NDPS Act

The applicant contended that a defective notice which was issued to her under Section 50 NDPS Act, as the same did not indicate any 'receiving' rendered by applicant prior to her search

The Court stated that Section 50 needs to be complied with only in cases of personal search and not where the bag of the person being searched. Here, it noted that no personal search of the accused was conducted and thus Section 50 would not apply.

However, the Court took objection to the fact that there was a pre-typed proforma of no objection for search to be conducted by a lady customs officer, which was signed by the applicant.

The Court remarked, “This practice may not be totally correct considering that Section 50 requires options to be given to the person being searched; in fact an affirmative option is to be exercised for the search being conducted before the nearest Gazetted Officer/Magistrate. Having provided a pre-typed proforma, with the less desirable option and getting it endorsed by the signatures of the person being searched, that too in the heat of the moment of the raid/seizure, is a practice which is to be deprecated.”

It referred to the Supreme Court case of Ranjan Kumar Chadha vs. State of Himachal Pradesh (2023 LiveLaw (SC) 856), where it was observed that when a suspect waives their right to searched before a Gazetted Officer or Magistrate, such waiver should be reduced to writing and signed by the suspect and concerned officials.

The High Court thus remarked “Customs is well-advised to alter their proforma notices to introduce the above options in consonance with requirements of Section 50 as sanctified by decisions of Supreme Court inter alia in Ranjan Kumar Chadha (supra).”

Improper sampling

The applicant further contended that there was improper sampling of the capsules. The applicant submitted that the samples were not taken from each capsule and weight of each capsule was not taken, violating the procedure prescribed by law.

The relevant guidelines for seizure and sampling of contrabands is the Standing Order (SO) issued by Ministry. SO 1/89 mandates that the drugs should be well-mixed to make them homogenous before drawing a sample. It further provides that that in case of seizure of more than one package/container, the option of drawing in lots must be provided in order to accommodate for various situations which may arise on the spot.

The High Court noted that if the procedure adopted for sampling was so erroneous and defective that it would cast a doubt on the genuineness of the recovery bail can be granted in such circumstances. It stated the court has to consider the quantity of the recovery, the nature of the contraband and the circumstances in which it was seized.

Here, it observed that the seized capsules would not comply with the definition of a package/container. The Court opined that the raiding team could not be faulted when dealing with small capsules to have cut them and bunched them together. It held that there was no prima facie fault adopted by the raiding team.

“Nevertheless, without taking away from the mandatoriness of the requirement, the raiding team cannot be faulted when dealing with small capsules to have cut them and bunched them together. The Court, therefore, does not find any fault, at least prima facie, in the procedure adopted by the Customs.”

Application under Section 52A NDPS Act

It was contended that there was a delay of 17 days in filing the application under Section 52A NDPS Act and it is in contravention with SO 1/89 which prescribes moving of the application under Section 52A within 72 hours of recovery of contraband.

The applicant relied on Kashif vs. Narcotics Control Bureau (2023 LiveLaw (Del) 418), where a single bench of Delhi High Court observed that the application for drawing sample of a contraband before the concerned Magistrate under section 52A of NDPS Act should be made within 72 hours.

The Court however referred to a case of Sovraj v. State (2024), where a single bench of Delhi High wile considering a bail application observed that if the prosecution is able to justify the delay of sending the FSL samples on time, mere delay would not vitiate the evidence.

Here, the Court remarked that the applicant failed to overcome the rigours for grant of bail under Section 37 NDPS act. It stated, “Although in Sovraj (supra), this Court had enlarged the accused on bail, same was done inter alia on the issue of absence of independent witnesses and lack of photography or videography of the recovery. Same do not form basis of applicant's contentions herein and thus, application of law in this case will have to be done in the facts and circumstances of this case. In the present matter, at this stage, this Court is of the opinion that the applicant has failed to overcome the threshold as prescribed by Section 37 of the NDPS Act.”

Furthermore, on the claim of prolonged incarceration, the Court noted that she has undergone 2.5 years of custody and the trial is progressing. It noted that the trial court should make an attempt to expedite the trial and that if the trial does not proceed expeditiously, the applicant has a right to approach the court subsequently.

Considering the overall facts and circumstances of the case, the Court rejected the bail application.

Case title: Pauline Nalwoga vs. Customs (BAIL APPLN. 1112/2023 & CRL.M.A. 8928/2023)