NDPS Act | Recovery Made Without Compliance Of Section 50 Cannot Be Sustained: Delhi High Court While Granting Bail To Foreigner

Granting bail to a Nigerian in a drugs case after nearly four years of custody, the Delhi High Court has said that any recovery made without compliance of Section 50 of the NDPS Act "itself cannot be sustained" and no reliance can be placed on it.

"Since the mandatory requirement of Section 50 of the NDPS Act has not been met in the first instance, the recovery itself is under doubt. Any recovery made without compliance of Section 50 of the NDPS Act itself cannot be sustained," said Justice Jasmeet Singh in the order. 

The court further said since the "fountainhead of the recovery" itself is missing, "I am of the view that no reliance can be placed on the recovery made from the applicant".

"The Hon'ble Supreme Court as well as this Court has clearly opined that in case Section 50 of the NDPS Act is not complied with, the applicant is entitled to bail," Justice Singh said.

Emeka Emmanuel, a resident of Nigeria, was arrested by Tilak Nagar police in November 2018 in a case registered under Section 21/25 of the NDPS Act. Her counsel argued before the court that no proper notice under Section 50 was given to the applicant regarding her personal search. He relied on a judgement of the high court in Mohd. Rahis Khan vs. State wherein the court had observed that a mere offer of 'search in presence of a Gazetted Officer or Magistrate' would not satisfy the mandatory ingredients of Section 50.

"The facts of the said case are squarely applicable to the issue in hand. The notice issued in the present case is almost identical to the notice as reproduced in 'Mohd. Rahis Khan vs. State'," said Justice Singh.

The court also referred to the Supreme Court's ruling in State of Delhi vs. Ram Avtar @ Rama in which the apex court has observed that "unlawful possession of the contraband, under the Act, is a factor that has to be established by the prosecution beyond any reasonable doubt. Indeed, the seized contraband is evidence, but in the absence of proof of possession of the same, an accused cannot be held guilty under the Act."

The prosecution on the other hand argued that the Tehrir recorded on the same day in the case complies with the mandate of Section 50 of the NDPS Act as the specific word "legal right‟ has been used. It was also argued that search was conducted "before the Gazetted Officer" and since the seizure is of commercial quantity, Section 37 of the NDPS Act also applies.

Observing that Section 50 has to be complied with "not only substantially but fully, as it is a mandatory requirement", Justice Singh said Section 50 notice failed to give notice to the applicant regarding her legal right of being searched before the Gazetted Officer.

"The fact whether the Tehrir or the fact whether the applicant was searched before the Gazetted Officer is not relevant since the fountainhead i.e. the notice under Section 50 of the NDPS Act fails to give notice to the applicant of his statutory right," said the court.

The court also said twin conditions of Section 37 have been met in the case as the APP has been given the right to oppose the bail application. "I am also prima facie of the view that if the applicant is released on bail, he would not commit any offence," it added.

Granting bail to the accused, the court said she shall not leave the country during the bail period. It further directed her to surrender her passport, if any, at the time of release before the Jail Superintendent. 

"Till the time the applicant obtains a valid VISA, she shall be kept in observation home in accordance with FRRO guidelines," the court said further.

Title: EMEKA EMMANUEL vs THE STATE

Citation: 2022 LiveLaw (Del) 1121

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