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Uttarakhand High Court · body

2018 DIGILAW 9 (UTT)

BHURA ANSARI v. NARCOTICS CONTROL BUREAU

2018-01-03

LOK PAL SINGH

body2018
JUDGMENT Hon'ble Lok Pal Singh, J. (Oral) 1. Third bail application has been filed by the applicant in case crime No. 1 of 2016 under Section 8/20 of NDPS Act, Police Station N.C.B., District Dehradun. The second bail application had been rejected by this Court vide order dated 19.07.2017 as it was not filed with correct particular by the applicant. A complaint was filed by N.C.B. before the Special Judge NDPS, Dehradun, though the complaint filed by the N.C.B. has not been brought on record by the applicant. 2. The memo of search has been annexed along with bail application. It is mentioned in the arrest memo that information was received by the N.C.B. Dehradun that some suspected person is coming at I.S.B.T. Dehradun. The N.C.B. team immediately went to the spot and tried to find out the suspect person. On assuming that there is a suspect person, the N.C.B. team took on independent witness Mr. Mahavir Singh Rawat, who was the local resident of Dehradun and found that one suspect person, who was carrying a cloured printed bag, is standing at the gate of I.S.B.T. Dayal Amrit was printed on the said bag. The N.C.B. team stopped and introduced him. The accused was duly informed of his right of being searched to be a Gazetted Officer or the Magistrate, as required under Section 50 of the NDPS Act., but he declined that offer. When the accused declined to search before the Gazetted Officer or the Magistrate and gave his consent to search him by the N.C.B. team, then nothing was found from the body of the applicant. But the search of the bag, a white colour bag was found and some brown colour cylindrical sticks were found. Then, the N.C.B. team opened the bag and found substance ‘charas'. The contraband article was weighed and its weight was found to be 2.7 Kg. The applicant has admitted that he brought charas from Manglore, District Dehradun, and earlier he also sold the same in Dehradun. In the presence of independent witness, the recovered charas was sealed. 3. It is the contention of learned counsel for the applicant that there was no compliance of Section 50 of the NDPS Act., which is reproduced herein under:- “50. In the presence of independent witness, the recovered charas was sealed. 3. It is the contention of learned counsel for the applicant that there was no compliance of Section 50 of the NDPS Act., which is reproduced herein under:- “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 sub-section (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. 2[(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 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 (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.] 4. The learned counsel for the applicant has also placed reliance on the judgment of Five Judges Bench of Hon'ble Apex Court in the case of Vijaysinh Chandubha Jadeja vs. State of Gujarat reported in 2011 (1) SCC 609 the relevant paragraphs of which are reproduced herein under:- 14. Adopting the same line of arguments, Mr. The learned counsel for the applicant has also placed reliance on the judgment of Five Judges Bench of Hon'ble Apex Court in the case of Vijaysinh Chandubha Jadeja vs. State of Gujarat reported in 2011 (1) SCC 609 the relevant paragraphs of which are reproduced herein under:- 14. Adopting the same line of arguments, Mr. P.P. Malhotra, the learned Additional Solicitor General, appearing on behalf of the Government of NCT of Delhi maintained that it is clear from language of Sections 41(2), 42 and 43 of the NDPS Act that the legislature has dealt with gazetted officers differently, reposing higher degree of trust in them and, therefore, if a search of a person is conducted by a gazetted officer, he would not be required to comply with the rigours of Section 50(1) of the Act. It was argued that the view expressed by this Court in Ahmed, is incorrect and, therefore, deserves to be reversed. 15. The NDPS Act was enacted in the year 1985, with a view to consolidate and amend the law relating to narcotic drugs, incorporating stringent provisions for control and regulation of operations relating to narcotic drugs and psychotropic substances. The object of the said legislation has been explained time and again by this Court in a plethora of cases and, therefore, we feel that it is not necessary to delve upon this aspect all over again, except to re-emphasise that in order to prevent abuse of the provisions of the NDPS Act, which confer wide powers on the empowered officers, the safeguards provided by the Legislature have to be observed strictly. Moreover, having regard to the terms of reference to the larger Bench, extracted above, it is equally unnecessary to extract extensively all the provisions of the NDPS Act to which reference was made by learned counsel appearing for the States, and a brief reference to these provisions would suffice. 16. Moreover, having regard to the terms of reference to the larger Bench, extracted above, it is equally unnecessary to extract extensively all the provisions of the NDPS Act to which reference was made by learned counsel appearing for the States, and a brief reference to these provisions would suffice. 16. Under Section 41 of the NDPS Act, certain classes of Magistrates are competent to issue warrants for the arrest of any person whom such Magistrates have reason to believe to have committed any offence punishable under the NDPS Act, or for the search of any building, conveyance or place in which such Magistrate has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under the said 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 is kept or concealed. 5. From the perusal of the aforesaid judgment of Hon'ble Apex Court and provisions of Section 50 of NDPS Act., it would reveal that the compliance of Section 50 of NDPS Act is mandatory. Since from the recovery memo, it would reveal that the N.C.B. team has informed the applicant before making his search that he has a legal right to be searched before the Gazetted Officer or the Magistrate, therefore the mandatory compliance of the Section 50 of NDPS Act., has been made at the hands of the recovery officer. 6. Learned counsel for the applicant has failed to explain as to what necessary compliance or ingredients of Section 50 of NDPS Act has not been made. He vehemently submitted that there is no compliance of Section 50 of NDPS Act., without explaining any ingredients of Section 50 of NDPS Act. In view of above, this Court is of the view that the mandatory ingredients of Section 50 of NDPS Act is to aware about his legal right to be searched before the Gazetted Officer or the Magistrate and if the person declined the offer to get search before the Gazetted Officer or the Magistrate, the N.C.B. team can search him. 7. Since the mandatory compliance of Section 50 of the NDPS Act. 7. Since the mandatory compliance of Section 50 of the NDPS Act. Has been made in as much as the applicant was inforemd about his legal right to be searched before the Gazetted Officer or the Magistrate at the hands of recovery officer, therefore, this Court is of the considered opinion that there was a compliance of Section 50 of NDPS Act. The applicant was recovered with a heavy quantity of 2.7 Kg. charas in presence of independent witness and there is no explanation at the hands of the applicant in view of Section 54 of NDPS Act. Thus, this Court is of the opinion, since heavy quantity of charas has been recovered from the applicant in presence of independent witness, there is no question of false implication of the applicant. Without explaining any opinion to the final merit of the case, this Court does not find any ground to enlarge the applicant on bail. Therefore, the third bail application is rejected.