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TMI Blog2024 (5) TMI 1477X X X X Extracts X X X X X X X X Extracts X X X X ..... p Mall, Juhu Link Road, Mumbai. The applicant, whose features matched the description given by the informant, arrived near the bus pick up shed. The applicant was accosted. He was apprised of his legal right to be searched before the nearest Magistrate or gazetted officer under section 50 of the NDPS Act, 1985. The applicant volunteered to be searched by the NCB officials. In the search of the applicant, two transparent zip lock polythene pouches consisting of 2.5 gms tablets purported to be Ecstasy pills (MDMA) and 54.3 gms off white crystalline powder purported to be Mephedrone (MD) were found. The contraband articles were seized. The applicant came to be arrested on 4th October, 2021 at about 6.00 pm. 5. Mr. Kushal Mor, the learned counsel for the applicant, submitted that the applicant has been falsely roped in as is evident from the material on record. The alleged search of the contraband substance from the possession of the applicant is thoroughly vitiated on account of non-compliance of the mandate contained in section 50 of the NDPS Act, 1985, on two counts. First, the appraisal memo does not specifically inform the applicant that he has a legal right to be searched 'o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of State of Punjab vs. Baldev Singh (1999) 6 Supreme Court Cases 172. and Vijaysinh Chandubha Jadeja v. State of Gujarat (2011) 1 Supreme Court Cases 609. 8. In the case of Vijaysinh Jadeja (supra), the Supreme Court nowhere enunciated that the suspect should be apprised that he has right to be searched 'only' before the Magistrate or Gazetted officer. Vijaysinh Jadeja (supra) further enunciates in clear and explicit terms that, "the suspect may or may not choose to exercise the right provided to him under the provision of NDPS Act, 1985. Therefore, it can not be urged that even though the suspect declined to avail the right under section 50 of the NDPS Act, 1985, there is still an obligation on the investigating officer to have the suspect searched before the gazetted officer. Mr. Shirsat submitted that this position has been clarified by the Delhi High Court in the case of Nabi Alam v. State (Govt. of NCT of Delhi) 2021 SCC OnLine Del 3055. In the context of the decision of the Supreme Court in the case of Arif Khan @ Agha Khan v. State of Uttarakhand (2018) 18 Supreme Court Cases 380. on which reliance was placed by Mr. Mor. 9. Mr. Shirsat, further submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apprise the suspect of his vested right to be searched 'only' by a Gazetted Officer or a Magistrate. 14. The submission of Mr. Shirsat, the learned Special PP, that the aforesaid observation is per incuriam the decisions in Baldev Singh (supra) and Vijaysinh Jadeja (supra) need not be delved into elaborately by referring to doctrine of per incuriam. It would be suffice to note whether the proposition that the apprisal of the right to be searched, "only" before the Magistrate or a Gazetted officer flows from the decision in the case of Vijaysinh Jadeja (supra) from which this Court purportedly drew support in the case of Sholadoye Joy(supra). 15. In In the case of Vijaysinh Jadeja (supra), the Constitution Bench enunciated as under:- 29] In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Himachal Pradesh 2023 SCC OnLine SC 1262.. in the following words: 61] The observations made in Arif Khan (supra) are in direct conflict with the Constitution Bench decision of Baldev Singh (supra). 62] We are of the view that the decision of this Court in Arif Khan (supra) cannot be said to be an authority for the proposition that notwithstanding the person proposed to be searched has, after being duly apprised of his right to be searched before a Gazetted Officer or Magistrate, but has expressly waived this right in clear and unequivocal terms, it is still mandatory that his search be conducted only before a Gazetted Officer or Magistrate. (emphasis supplied) 21. An endeavour on the part of the applicant to throw a cloud of doubt over the search and seizure by referring to CCTV footages, at this stage, does not commend itself. That would be a matter for evidence and trial. 22. On the aspect of Adil Usmani being a stock panch, though the applicant has placed on record documents to indicate that Adil Usmani has acted as panch witness for the NCB in as many as 17 crimes, under a year, which may give rise to an inference that Mr. Adil Usmani is at the beck and call of the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the fact that the examination report issued by CFSL dated 21st February, 2022, indicates, inter alia, that the Exhibit M1, a transparent zip lock bag containing brown colour powder, stated to be 5 gm MD, was received for analysis, though the sample which was drawn from the contraband allegedly recovered from the person of the applicant was allegedly a white colour powder substance as recorded in the seizure panchanama. Prima facie, there is discrepancy in the description of the contraband which was allegedly seized from the applicant and sample collected therefrom, and the sample which was received for analysis by the CFSL. 26. Mr. Shirsat, the learned Special PP, attempted to salvage the position by canvassing a submission that colour of the sample could change as it was exposed to air during the process of inventory and sampling. Though the submission appears alluring at the first blush, yet, it would require evidence to bolster up the submission that there was possibility of such change in colour by the passage of time. It is in this context, the aspect of delay in conducting the inventory of the seized substance and drawing of samples before the Magistrate and the analysis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2021 registered with Narcotics Control Bureau, Mumbai on furnishing a P.R. Bond of Rs. 1,00,000/- with one or more sureties in the like amount.
3] The applicant shall mark his presence at NCB, Mumbai on the first Monday of every month between 11 am to 1 pm for a period of three years or till conclusion of the trial, whichever is earlier.
4] The applicant shall not tamper with the prosecution evidence and give threat or inducement to first informant, any of the prosecution witnesses or any person acquainted with the facts of the case.
5] The applicant shall furnish his contact number and residential address to the investigating officer and shall keep him updated, in case there is any change.
6] The applicant shall regularly attend the proceedings before the jurisdictional Court.
7] By way of abundant caution, it is clarified that the observations made hereinabove are confined for the purpose of determination of the entitlement for bail and they may not be construed as an expression of opinion on the guilt or otherwise of the applicant and the trial Court shall not be influenced by any of the observations made hereinabove.
Application disposed. X X X X Extracts X X X X X X X X Extracts X X X X
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