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2015 DIGILAW 434 (CAL)

In the matter of : Rakibul Sk. @ Islm v. .

2015-05-13

INDIRA BANERJEE, SAHIDULLAH MUNSHI

body2015
JUDGMENT : This application for bail has been filed in connection with Narcotic Drugs and Psychotropic Substances Case No. 229 of 2014 arising out of Jalangi Police Station Case No.726 of 2014 dated 20th August, 2014 under Section 21(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as the NDPS Act. 2. The Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as the NDPS Act, was enacted to consolidate and amend the law relating to Narcotic drugs, to make stringent provisions for the control of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from or used in illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Convention on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. 3. Section 4 of the said Act casts an obligation on the Central Government to take such measures as it deems necessary or expedient for the purpose of preventing and com-batting abuse of narcotic drugs and psychotropic substances and the illicit traffic therein and also for ensuring their medical and scientific use. 4. Under Section 4(2) of the NDPS Act, the Central Government might take inter alia the following actions:- (a) Coordination of actions by various Officers, State Governments and other authorities. (b) Enforcement of obligations under the International Convention. (c) Assistance to concerned authorities and foreign countries and to concerned international organisations to facilitate coordination and universal action for prevention of illicit traffic in narcotic drugs and psychotropic substances. (d) Identification, treatment, education, after care, rehabilitation and social integration of addicts. (e) Ensuring availability of narcotic drugs and psychotropic substances for medical and scientific use. (f) Such other matters as might be deemed necessary for effective implementation of the provisions of the NDPS Act. 5. Some of the relevant provisions of the NDPS Act are set out herein below for convenience:- "15. (e) Ensuring availability of narcotic drugs and psychotropic substances for medical and scientific use. (f) Such other matters as might be deemed necessary for effective implementation of the provisions of the NDPS Act. 5. Some of the relevant provisions of the NDPS Act are set out herein below for convenience:- "15. Punishment for contravention in relation to poppy straw.- Whoever, in-contravention of any provisions of this Act or any rule or order made or condition of a licence granted thereunder, produces, possesses, transports, imports inter-State, exports inter-State, sells, purchases, uses or omits to warehouse poppy straw or removes or does any act in respect of warehoused poppy straw shall be punishable, (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both; or (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees; or (c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. 16. Punishment for contravention in relation to coca plant and coca leaves.-Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, cultivates any coca plant or gathers any portion of a coca plant or produces, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses coca leaves shall be punishable with rigorous imprisonment for a term which may extend to ten years or with fine which may extend to one lakh rupees. 17. 17. Punishment for contravention in relation to prepared opium- Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses prepared opium shall be punishable, (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both; or (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees; or (c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. 18. Punishment for contravention in relation to opium poppy and opium. -Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses opium shall be punishable, (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both; (b) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees; (c) in any other case, with rigorous imprisonment which may extend to ten years and with fine which may extend to one lakh rupees.] 19. Punishment for embezzlement of opium by cultivator. Punishment for embezzlement of opium by cultivator. - Any cultivator licensed to cultivate the opium poppy on account of the Central Government who embezzles or otherwise illegally disposes of the opium produced or any part thereof, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. 20. Punishment for contravention in relation to cannabis plant and cannabis.-Whoever, in contravention of any provisions of this Act or any rule or order made or condition of licence granted thereunder, (a) cultivates any cannabis plant; or (b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter State or uses cannabis, shall be punishable - (i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees; and (ii) where such contravention relates to sub clause (b), (A) and involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine, which may extend to ten thousand rupees, or with both; (B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees; (C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. 21. 21. Punishment for contravention in relation to manufactured drugs and preparations.- Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable, (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both; (b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to two years and with fine which may extend to one lakh rupees; (c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. 22. Punishment for contravention in relation to psychotropic substances. - Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substance shall be punishable, (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both; (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees; (c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. 23. 23. Punishment for illegal import in to India, export from India or transshipment of narcotic drugs and psychotropic substances.-Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence or permit granted or certificate or authorisation issued thereunder, imports into India or exports from India or transships any narcotic drug or psychotropic substance shall be punishable,- (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine, which may extend to ten thousand rupees or with both; (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine; which may extend to one lakh rupees; (c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.] 25. Punishment for allowing premises, etc., to be used for commission of an offence.- Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence. 25A. Punishment for contravention of orders made under section 9A. –If any person contravenes an order made under section 9A, he shall be punishable with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding one lakh rupees.] 27A. Punishment for financing illicit traffic and harbouring offenders.-Whoever indulges in financing, directly or indirectly, any of the activities specified in sub-clauses (i) to (v) of clause (viiia) of section 2 or harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees]. 28. Punishment for attempts to commit offences.-Whoever attempts to commit any offence punishable under this Chapter or to cause such offence to be committed and in such attempt does any act towards the commission of the offence shall be punishable with the punishment provided for the offence. 29. Punishment for abetment and criminal conspiracy.-(1) Whoever abets, or is a party to a criminal conspiracy to commit an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and contained in section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence. (2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which (a) would constitute an offence if committed within India; or (b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India. 30. 30. Preparation.-If any person makes preparation to do or omits to do anything which constitutes an offence punishable under any of the provisions of [sections 19, 24 and 27A and for offences involving commercial quantity of any narcotic drug or psychotropic substance and from the circumstances of the case] it may be reasonably inferred that he was determined to carry out his intention to commit the offence but ad been prevented by circumstances independent of his will, he shall be punishable with rigorous imprisonment for a term which shall not be less than one-half of the minimum term (if any), but which may extend to one half of the maximum term, of imprisonment with which he would have been punishable in the event of his having committed such offence, and also with fine which shall not be less than one-half of the minimum amount (if any), of fine with which he would have been punishable, but which may extend to one-half of the maximum amount of fine with which he would have ordinarily (that is to say in the absence of special reasons) been punishable, in the event aforesaid: Provided that the court may, for reasons to be recorded in the judgment, impose a higher fine. 37. Offences to be cognisable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) every offence punishable under this Act shall be cognisable; (b) no person accused of an offence punishable for (offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity) shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail." 41. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail." 41. Power to issue warrant and authorisation.- (1) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act is kept or concealed: (2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the paramilitary forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place. (3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under section 42. 42. (3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under section 42. 42. Power of entry, search, seizure and arrest without warrant or authorisation.- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior I in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture there of and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under subsection (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. 49. Power to stop and search conveyance.-Any officer authorised under section 42, may, if he has reason to suspect that any animal or conveyance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance [or controlled substance], in respect of which he suspects that any provision of this Act has been or is being, or is about to be, contravened at any time, stop such animal or conveyance, or, in the case of an aircraft, compel it to land and – (a) rummage and search the conveyance or part thereof; (b) examine and search any goods on the animal or in the conveyance; (c) if it becomes necessary to stop the animal or the conveyance, he may use all lawful means for stopping it, and where such means fail, the animal or the conveyance may be fired upon. 50. Conditions under which search of persons shall be conducted.- (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy two hours send a copy thereof to his immediate official superior. 6. The case of the prosecution as made out in the FIR is that on 22nd August, 2014 police personnel of Jalangi Police Station, on receipt of secret information, went to Sagarpara area and found one person with a plastic container full of liquid codeine mixture. 7. The police party apprehended the said person after interrogation and search. The officer-in-charge of Jalangi Police Station recovered 10,000 ml (10 litres) of codeine mixture from the possession of the arrested accused person. 8. In the FIR it is stated that the police party apprehended the person and on being asked, he disclosed his name. He had one big plastic container with him. On seeing the police, he tried to run away with the container but the police caught him after a hot chase and apprehended him. 9. It is further stated that on interrogation the person confessed that he had stored liquid codeine mixture to smuggle the same to Bangladesh illegally. In the FIR it is stated that the Complainant, a Sub Inspector of Police, Jalangi Police Station, gave the person opportunity to search the body of the policemen but he verbally declined to do so and he, also, verbally agreed to search of his person as well as the container. 10. In the FIR it is stated that the Complainant, a Sub Inspector of Police, Jalangi Police Station, gave the person opportunity to search the body of the policemen but he verbally declined to do so and he, also, verbally agreed to search of his person as well as the container. 10. In the FIR, it is stated that the complainant, Sub-inspector of Police searched the container of the said person in the presence of Inspector, Palak Mallik, Circle Inspector Domkol, Officer-in-Charge, Jalangi Police Station and the apprehended person. As per the statement given by the accused person, the liquid contained in the container was 10,000 ml codeine mixture. The detained person could not on demand produce any documents to justify his possession said to be codeine mixture. The detained person admitted that he had stored the codeine mixture to smuggle the same to Bangladesh so that he could earn a lot of money. The complainant then seized the container along with its contents, took out 200 ml. of liquid as sample in two small plastic bottles of 100 ml. each after taking the signature of the owner and arrested the accused person under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as the NDPS Act. 11. Mr. Dipak Sengupta, learned Senior Advocate appearing on behalf of the petitioner submitted that contravention of the provisions of Section 21 of the NDPS Act entails punishment of rigorous imprisonment for a term of not less than 10 years which might extend to 20 years and to fine not less than Rs.1,00,000/- but which might extend to Rs.2,00,000/. The Court is also empowered to impose fine exceeding Rs.2,00,000/- for reasons to be recorded in the judgment. 12. Mr. Sengupta further argued that Section 54 of the NDPS Act shifts the onus on the accused to prove his innocence. In trials under the NDPS Act, unless the contrary is proved, it may be presumed that an accused has committed the offence in respect of articles, possession of which he fails to account for satisfactorily. 13. Mr. Sengupta submitted that considering the grave consequences of possession of illicit articles, legislature has provided safeguards in case of search and seizure, to obviate the possibility of false implication of innocent persons. 14. Mr. 13. Mr. Sengupta submitted that considering the grave consequences of possession of illicit articles, legislature has provided safeguards in case of search and seizure, to obviate the possibility of false implication of innocent persons. 14. Mr. Sengupta rightly argued that the provisions of the NDPS Act and particularly Section 21 thereof being harsh in nature the procedural safeguards in Section 50 of the NDPS Act must scrupulously be complied with. This proposition finds support from the five Judge Bench judgment of the Supreme Court in the State of Punjab v. Baldev Singh reported in AIR 1999 SC 2379 cited by Mr. Sengupta. 15. Mr. Sengupta submitted that any search had to be conducted strictly in accordance with the provisions of the NDPS Act and any failure or omission to comply with any of the requisites under the said Act and in particular Section 50 read with Section 42 thereof would vitiate the search. 16. Mr. Sengupta argued that a combined reading of Sections 42 and 50 make it clear that whenever a person is about to be searched on the basis of personal knowledge or information received, the person intended to be searched is required to be taken to a Gazetted Officer or to the nearest Magistrate. Failure to take the person intended to be searched to a Gazetted Officer or the nearest Magistrate would vitiate the search and ultimately vitiate the conviction. In support of his submission, Mr. Sengupta cited State of Punjab v. Baldev Singh (supra). 17. Mr. Sengupta rightly argued that after the judgment of the Supreme Court in Maneka Gandhi v. Union of India reported in (1978) 1 SCC 248 , it is no longer permissible to contend that the right of personal liberty can be curtailed even temporarily by a procedure which is not reasonable, just and fair. When the statute itself provides for a just procedure, that procedure must be followed. 18. In support of his submission that non-compliance with the procedure mandated by Section 50 would vitiate the search and lead to acquittal of the accused, Mr. Sengupta cited : (1) Saiyad Mohd. Saiyad Umar Saiyad and Ors. v. State of Gujarat reported in (1995) 3 SCC 610 . (2) Myla Venkateswarlu v. State of Andhra Pradesh reported in (2012) 2 SCC (Cri) 686. (3) Sarju alias Ramu v. State of Uttar Pradesh reported in (2010) 2 SCC (Cri) 1510. Sengupta cited : (1) Saiyad Mohd. Saiyad Umar Saiyad and Ors. v. State of Gujarat reported in (1995) 3 SCC 610 . (2) Myla Venkateswarlu v. State of Andhra Pradesh reported in (2012) 2 SCC (Cri) 686. (3) Sarju alias Ramu v. State of Uttar Pradesh reported in (2010) 2 SCC (Cri) 1510. (4) Ahmed v. State of Gujarat reported in (2000) 7 SCC 477 . (5) State of Rajasthan v. Parmanand & Anr. reported in (2014) 2 C Cr LR (SC) 319. (6) Gurjant Singh alias Janta v. State of Punjab reported in (2014) 13 SCC 603 . (7) State of Himachal Pradesh v. Pawan Kumar reported in 2005 SCC (Cri) 943. 19. Similarly in Saiyad Mohd. Saiyad Umar Saiyad and Ors. v. State of Gujarat (supra) also the Supreme Court held that when the Officer concerned had not deposed in Court, that he had followed the procedure mandated by Section 50, the Court was duty bound to conclude that the accused did not have the benefit of the protection that Section 50 affords. His possession of illicit articles would have to be held not to have been established. 20. In Myla Venkateswarlu v. State of Andhra Pradesh (supra), the Supreme Court set aside the judgment and order convicting the accused, as the Supreme Court found that the provision of Section 50 had not been complied with and the conviction of the appellant was solely on possession of 'ganja' recovered from him. 21. In Ahmed v. State of Gujarat (supra), the Supreme Court held that when a search was made by an empowered Officer who happened to be a Gazetted Officer, it was still obligatory to inform the accused of his right to be searched before another Gazetted Officer or before the nearest Magistrate in compliance with the mandatory requirement of Section 50. In the aforesaid case, the accused had asked to be searched before a Gazetted Officer or a Magistrate but this was denied on the ground that the person making the search was a Gazetted Officer. The conviction and sentence was set aside. 22. In State of Rajasthan v. Parmanand & Anr. In the aforesaid case, the accused had asked to be searched before a Gazetted Officer or a Magistrate but this was denied on the ground that the person making the search was a Gazetted Officer. The conviction and sentence was set aside. 22. In State of Rajasthan v. Parmanand & Anr. (supra), the Supreme Court referred to and relied upon its earlier judgments in State of Punjab v. Balbir Singh reported in (1994) 3 SCC 299 , Kalema Tumba v. State of Maharashtra reported in (1999) 8 SCC 257 , State of Himachal Pradesh v. Pawan Kumar reported in (2005) 4 SCC 350 , Dilip v. State of Madhya Pradesh reported in (2007) 1 SCC 450 and Union of India v. Shah Alam and Anr. reported in (2009) 16 SCC 644 and held that if only a bag was carried by a person, when there being no search of his person, Section 50 of the NDPS Act would have no application. But if the bag carried by him was searched and his person was also searched, Section 50 of the NDPS Act would have application. In Parmanand's case the bag was searched and there was also bodily search. 23. In Gurjant Singh alias Janta v. State of Punjab (supra), the accused had been given the option of being searched before a Gazetted Officer or a Magistrate. He exercised option to be searched before a Magistrate. However, on facts it was found that the accused had been searched by a Gazetted Officer. 24. Mr. Sengupta also referred to an order dated 19th December, 2014 of a Division Bench of Pranab Kumar Chattopadhyay and Sudip Ahluwalia, JJ in CRM 16953 of 2013. In the aforesaid case, the Division Bench referred to and relied upon State of Rajasthan v. Parmanand & Anr.(supra) and granted bail to the petitioner, Sanjit Majumdar observing that there had been in breach of Section 50 in that search had not been conducted in presence of a Magistrate or any other Gazetted Officer other than Police Officers. 25. In the aforesaid case Division Bench did not decide any question of law. The order rendered in the facts of the case before the Division Bench does not operate as a binding precedent on this Bench. 26. It is a well settled proposition of law that a decision is an authority for the issue of law it actually decides. 25. In the aforesaid case Division Bench did not decide any question of law. The order rendered in the facts of the case before the Division Bench does not operate as a binding precedent on this Bench. 26. It is a well settled proposition of law that a decision is an authority for the issue of law it actually decides. Everything said in the judgment does not operate as a precedent. This proposition has been reiterated in State of Punjab v. Baldev Singh (supra). 27. Opposing the application for bail, the learned Public Prosecutor argued that the conditions precedent for search in Section 50 are attracted only in case of personal search and not search of baggage. In this case the illicit substance was recovered from a container. The requirements of Section 50 were not applicable. In support of his submission the learned Public Prosecutor referred to State of Punjab v. Baldev Singh (supra). 28. The learned Public Prosecutor further argued that the Court cannot read into Section 50 words which are not there in the section. It is a well settled principle of statute that the Court cannot add words in a statute. 29. The learned Public Prosecutor argued that Section 50 would apply only if person intended to be searched requires that he be searched in the presence of a Gazetted Officer. In support of his submission the learned Public Prosecutor cited Jarnal Singh v. State of Punjab reported in (2011) 3 SCC 521 . 30. The learned Public Prosecutor argued that the petitioner agreed to be searched by the complainant, a Gazetted Police Officer. 31. The learned Public Prosecutor finally emphasised on Section 37 of the NDPS Act and argued that this Court should reject the prayer for bail in view of the limitation on the power of the Court to grant bail unless the Court was satisfied that there are reasonable grounds to believe that the applicant is not guilty of the offence alleged. 32. The conditions precedent for the search of a person is that if the person to be searched so requires, the officer concerned shall take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest magistrate. 33. 32. The conditions precedent for the search of a person is that if the person to be searched so requires, the officer concerned shall take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest magistrate. 33. Under Section 42 of the NDPS Act empowers any officer superior to the rank of peon, sepoy or constable of the departments of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer, being an officer superior in rank to a peon, sepoy or constable of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, to search any person. 34. When the person about to be searched excises option to be searched before a gazetted officer, or a magistrate, the concerned authorised officer might detain the person until he can be taken to the gazetted officer or the magistrate referred to in sub-section (1) of Section 50. 35. Section 50(3) provides that the gazetted office or the magistrate before whom a person is brought might forthwith discharge the person intended to be searched if he sees no reasonable ground for search. Otherwise he shall direct that a search be made. Sub-section (4) puts restrictions on the search of female. The section provides that no female shall be searched by anyone excepting a female. 36. It is important to note the provision of sub-section (5) of Section 50 which provides that when an officer duly authorised under section 42 has reason to believe that it is not possible to take the person, to be searched, to the nearest gazetted officer or magistrate, without the possibility of the person to be searched, parting with possession of any narcotic drug or psychotropic substance or controlled substance or article or document, he may, instead of taking such person to the nearest gazetted officer or magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973. After a search is conducted under subsection (5), the officer shall record the reasons for such belief which necessitated such search. After a search is conducted under subsection (5), the officer shall record the reasons for such belief which necessitated such search. Section 51 makes the provisions of the Code of Criminal Procedure, 1973 applicable to warrants, arrests, searches and seizures under the NDPS Act. 37. In Baldev Singh (supra) the Supreme Court held that failure to inform the concerned person of his right as emanating from sub-section (1) of Section 50 might render the recovery of the contraband suspect and the conviction and sentence of an accursed bad and unsustainable in law (paragraph 55). 38. The Constitution Bench further held that when as empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person about to be searched of his right to be searched before a gazetted officer or a magistrate. Such information is not necessarily required to be given in writing. 39. The Supreme Court held that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously, inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. 40. There can be no doubt that the requisites of Section 50 have to be complied with. An empowered officer about to search a person is obliged to inform the person about to be searched, of his right under sub-section of Section 50 to be taken to the nearest gazetted officer or to the nearest magistrate for making search. However, as held by the Supreme Court in paragraph 55, whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the court on the basis of evidence led at the trial. Irregularity of procedure may ultimately vitiate the proceeding and lead to acquittal. However, that is a matter to be decided on the basis of the evidence at the trial. 41. In State of Rajasthan v. Parmanand and Anr. Irregularity of procedure may ultimately vitiate the proceeding and lead to acquittal. However, that is a matter to be decided on the basis of the evidence at the trial. 41. In State of Rajasthan v. Parmanand and Anr. (supra), the Supreme Court referred to the Constitution Bench judgement of the Supreme Court in Baldev Singh (supra) as well as the judgments of the Supreme Court in State of Himachal Pradesh v. Pawan Kumar reported in (2005) 4 SCC 350 ; Dilip v. State of M.P. reported in (2007) 1 SCC 450 ; Union of India v. Shah Alam reported in (2009) 16 SCC 644 and held that if a bag carried by a person is searched without there being any search of his person, Section 50 would have no application. But if the bag carried by him was searched and his person was also searched, Section 50 of the NDPS Act would have applicable. 42. The Supreme Court observed and held that most of the offences under the NDPS Act carry stringent punishment and therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement must be adhered to. 43. Section 37 of the NDPS Act however, cast restrictions, on the power of the Court to grant bail unless the Public Prosecutor is heard. Where the Public Prosecutor opposes the bail, the may not be granted unless the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that his is not likely to commit any offence while on bail. 44. In this case the Prosecution case is that there was no personal search. As held by the Five Judge Bench of the Supreme Court in State of Punjab v. Baldev Singh (supra) whether or not the safeguards provided under Section 50 have been duly observed, would have to be determined on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction for acquittal. However, at this stage, bail cannot be granted since the petitioner was apparently found to be in possession of Codeine Mixture, which is a narcotic drug in excess of the commercial quantity. There are no grounds to believe that the petitioner is not guilty of the offence alleged. However, at this stage, bail cannot be granted since the petitioner was apparently found to be in possession of Codeine Mixture, which is a narcotic drug in excess of the commercial quantity. There are no grounds to believe that the petitioner is not guilty of the offence alleged. 45. Whether the search and seizure of Codeine Mixture was in compliance with the rules or not may be an issue at the trial. Conviction might be set aside if on consideration of evidence, the Court finds that such conviction was based on seizure alone and the seizure was illegal. 46. Whether the seizure was illegal or not, would have to be decided on evidence, and not at this stage. The trial would have to proceed. 47. The prayer for bail is, therefore, rejected.