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TMI Blog2023 (12) TMI 1357X X X X Extracts X X X X X X X X Extracts X X X X ..... eroin in Delhi would come near the Rajokri Flyover and if a raid is conducted he can be apprehended with a huge quantity of heroin. ii. Acting on the said information, a raid was conducted and at 10:10 PM, a person wearing a blue colour t-shirt and light blue colour jeans was seen coming on foot carrying a yellow colour cloth carry bag. The said person was identified by the secret informer as the applicant. iii. After a few minutes, when the applicant is about to leave, the police team apprehended him. He was informed about the secret information regarding his alleged involvement in supply of heroin and that there was a possibility of recovery of contraband from him. iv. Thereafter, a notice under Section 50 of the NDPS Act served upon him and he was informed that he has the right to be produced before a Magistrate or a Gazzetted Officer prior to his search or such officer can be called to the spot and his search can be conducted in his/her presence. The applicant was further informed that it is also his right to search the police officers and the private car driven by them. The applicant declined to be searched in the presence of a Magistrate or a Gazzetted Officer. v. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficial superior." (emphasis supplied) 4. It was submitted that in the present case, the notice under Section 50 served upon the applicant stated that he has the right to be searched in the presence of any Gazetted Officer or Magistrate and did not stipulate that he has a right to be searched in the presence of the 'nearest' Gazetted Officer or Magistrate, and therefore, the provision was not complied with in the manner it ought to have been done. In support of the said contention, learned counsel for the applicant placed reliance on a judgment dated 28.03.2023 passed by a coordinate bench of this Court in BAIL APPLN. 1725/2022 titled 'Mohd. Jabir v. State of NCT of Delhi', wherein in a similar case where the word 'nearest' was not mentioned in the notice under Section 50 of the NDPS Act, bail was granted to the applicant therein for non-compliance of the said provision. 5. Learned counsel for the applicant further placed reliance on the following judgments: i. SK Raju @ Abdul Haque @ Jagga, 2018 INSC 780. ii. Sh. Akhilesh Bharti v. State, 2020:DHC:340. iii. Kamruddin v. State, 2022/DHC/004767. iv. Sachin Arora v. State Govt. NCT of Delhi, 2023:DHC:5808. v. Vinay v. St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. State (Govt of NCT of Delhi), 2021:DHC:1974. 10. Heard learned counsel for the parties and perused the record. 11. The primary ground on the basis of which bail has been sought in the present case is the alleged non-compliance of Section 50 of the NDPS Act. Learned APP for the State contended that the same is a matter for trial and the cannot be looked into at this stage. The said contention cannot be sustained because this Court, for the purposes of deciding the present application within the contours of Section 37 of the NDPS Act, has to examine the legal issues raised herein. The Hon'ble Supreme Court, in Union of India v. Shiv Shankar Kesari, (2007) 7 SCC 798, while explaining the term 'reasonable ground' used in Section 37(1)(b)(ii) of the NDPS Act, held as under: "7. The expression used in Section 37(1)(b)(ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 2 SCC 271, the Hon'ble Supreme Court observed: 13. The interpretative function of the court is to discover the true legislative intent. It is trite that in interpreting a statute the court must, if the words are clear, plain, unambiguous and reasonably susceptible to only one meaning, give to the words that meaning, irrespective of the consequences. Those words must be expounded in their natural and ordinary sense. When the language is plain and unambiguous and admits of only one meaning, no question of construction of statute arises, for the Act speaks for itself. Courts are not concerned with the policy involved or that the results are injurious or otherwise, which may follow from giving effect to the language used. If the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In considering whether there is ambiguity, the court must look at the statute as a whole and consider the appropriateness of the meaning in a particular context avoiding absurdity and inconsistencies or unreasonableness whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant's alleged refusal that he is unwilling to be searched is irrelevant. The notice u/s 50 NDPS act itself is faulty in law. Therefore, it cannot be said that accused's unwillingness to be searched in front of an officer who is a member of the raiding team is a voluntary expression of their desire for giving up their right to be searched. The notice of section 50 served to the applicant clearly violates the law and is a misdirection. As a result, I am of the opinion that the applicant was misled into believing that his search was to be before any gazetted officer and not the nearest. Further the fact was conducted before ACP Rich pal is far from an independent search as ACP Rich pal was part of the raiding team." 13. In view of the aforesaid, the contention of learned APP for the State that the question of being search in the presence of the 'nearest' Gazetted Officer or Magistrate would arise only if the accused had exercised his option in terms of Section 50 of the NDPS Act, is not tenable. 14. The right of the accused, as contained in Section 50 of the NDPS Act is mandatory in nature and the same has been emphasized time and again in the various judicial precedents. The c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right. *** *** *** 18. Under the Act wide powers are conferred on the officers and deterrent sentences are also provided for the offences under the Act. It is obvious that the legislature while keeping in view the menace of illicit drug trafficking deemed it fit to provide for corresponding safeguards to check the misuse of power thus conferred so that any harm to innocent persons is avoided and to minimise the allegations of planting or fabricating by the prosecution, Section 50 is enacted. *** *** *** 20. In Miranda v. Arizona [384 US 436 : 16 L Ed 2d 694 (1966)] the Court, considering the question whether the accused be apprised of his right not to answer and keep silent while being interrogated by the police, observed thus: "At the outset, if a person in custody is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of performance are necessarily forbidden." 17. In the present case, notice under Section 50 of the NDPS Act given to the applicant reads as under: With regard to the aforesaid notice, it is the case of the prosecution that the present applicant refused to be searched before a Gazzetted Officer or a Magistrate and therefore, the question of him being searched before 'nearest' such officer does not arise. A perusal of the aforesaid notice reflects that the word 'nearest' does not find any mention as stated hereinabove. The said word is in the language of the section itself. The raiding officer in the present case ought to have given the said option to the applicant. This Court is in agreement that the judgment of co-ordinate bench in Mohd. Jabir (supra) to the effect that the word 'nearest' has been used in the statute with a certain intention and cannot be ignored by the concerned Investigating Officer at the time of giving notice under Section 50 of the NDPS Act. 18. As per nominal roll dated 10.05.2023, the applicant has been in judicial custody for 01 year 05 months and 28 days. The investigation in the present case is complete, the chargesheet stands filed and the trial is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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