S.50 NDPS Act Not Applicable To Vehicle Search, Punjab & Haryana High Court Refuses Bail In Alleged Recovery Of 3.5 Quintals Of Ganja

The Punjab and Haryana High Court has rejected bail in the alleged drugs case where in a truck driver was allegedly found in possession of 3 quintals and 59 kgs of Ganja, observing that a huge recovery was effected from the truck and it cannot be held that there was non compliance of Section 50 of the NDPS Act.

Justice N.S. Shekhawat said that, "a huge recovery was effected from the truck and it cannot be held that there was non compliance of Section 50 of the NDPS Act. A bare perusal of Section 50 shows that it applies in the personal search of a person and it does not extend to a vehicle, a container, a company or premises."

Section 50 specifies the conditions for searching a person under the NDPS Act:

1. A person to be searched has the right to be taken to the nearest Gazetted Officer or Magistrate.

2. If requested, the officer can detain the person taken to the officer or Magistrate.

3. The Gazetted Officer or Magistrate can discharge the person if he/she sees no reasonable ground for a search.

4. Women must be searched only by female officers.

5. If the authorised officer cannot take the person to a Magistrate or Gazetted

Officer due to the possibility of the person to be searched parting with possession of contraband, the authorised officer may search immediately, following section 100 of the CrPC.

6. The authorised officer must document the reasons for the search under subsection 5 and report them to the immediate superior within 72 hours.

The Court also rejected the contention that Section 42 of the NDPS Act would be applicable in the present case and that the same is not complied by the police.

"The material difference between the provisions of Sections 42 and 43 of the NDPS Act is that Section 42 requires recording of reasons for believing and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure. Section 43 does not contain any such provision and as such while acting under Section 43 of the NDPS Act, the empowered officer has the power of seizure of articles etc., and the arrest of a person, who is found to be in possession of any narcotic drugs and psychotropic substances in a public place where such possession appears to him to be unlawful," the judge explained.

These observations were made while hearing the bail plea under 439 of the CrPC, wherein the accused Sabbir Khan was booked in FIR under Section 20(b)(ii) B of the NDPS Act.

According to the FIR Khan was apprehended while driving a truck in a naka set up at a Highway on the basis of a secret information. It was alleged that 3 quintals and 59 Kgs Ganja was recovered from the truck.

By following the legal procedure, the accused was arrested and the case property was taken into possession by the police, it added.

Counsel for the petitioner argued that Khan has been falsely implicated in the present case and was arrested in August 2023 without following the due process of the law. Even the ground of arrest were not supplied to him, added the counsel.

After considering the submissions, the Court said that the object of the Narcotic Drugs and Psychotropic Substances Act is to make the stringent provisions for the control and regulation of operations relating to those drugs and substance.

"At the same time, to avoid the harm to the innocent persons and to prevent the abuse of the provisions by the officers, certain safeguards have been provided in the statute, which have been observed strictly," it added.

Justice Shekhawat highlighted that the provisions under NDPS, make it obligatory that the officers connected with the raids must follow the said provisions carefully while carrying out arrest and search, as provided in the Act. To that extent, such procedure is mandatory.

However, the failure to comply with these requirements affects the prosecution case and, therefore, ultimately, vitiates the trial.

Examining the records, the judge said, "It is apparent from the record that the police had complied with the mandatory provisions of law. The petitioner was apprised of his rights, at the time of his arrest and due process had been followed by the police."

The Court further added that the quantity of 3 quintals and 59 Kgs of Ganja, which was recovered from the petitioner, "falls within the ambit of commercial quantity, as per the provisions of NDPS Act and the bar contained in Section 37 of the Act would be applicable to the facts of the present case."

In the light of the above, the plea was dismissed.

Title: Sabbir Khan v. State of Haryana

Citation: 2024 LiveLaw (PH) 317

Mr. Saurav Bhatia, Advocate, for the petitioner.

Ms. Sheenu Sura, DAG, Haryana.

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