Section 50 NDPS Act | Raiding Officer Should Give Option Of Being Searched Before 'Nearest' Gazetted Officer/Magistrate: Delhi HC

A bail application under Section 439 of the Code of Criminal Procedure, 1973, and Section 36A(3) of the NDPS Act was filed. The applicant was seeking regular bail in a case related to the alleged supply of drugs.

A Bench of Justice Amit Sharma concurring with judgment of co-ordinate Bench in Mohd. Jabir v. State of NCT of Delhi held, “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 co-ordinate bench of this Court, in Mohd. Jabir (supra), has taken note that the word ‘nearest’ has been used in the statute with a certain intention, as discussed hereinabove in the aforesaid judgment.”

The central argument revolved around the wording of the notice given under Section 50, where the applicant contended that the notice did not specify the right to be searched in the presence of the 'nearest' Gazetted Officer or Magistrate, as required by the statute.

Advocate Aditya Aggarwal appeared for the Petitioner and Advocate Aman Usman appeared for the Respondent.

The applicant's counsel argued that the bail should be granted due to the alleged non-compliance with the mandatory requirements of Section 50 of the NDPS Act, which outlined the conditions under which the search of persons shall be conducted.

On the other hand, the prosecutor argued that the notice adequately informed the accused of their right to be searched in the presence of a Gazetted Officer or Magistrate, and the absence of the word 'nearest' does not amount to non-compliance with Section 50. The prosecutor also contended that the compliance with Section 50 is a matter for trial and should not be considered at the bail stage.

The Court, after considering the arguments, held that the right under Section 50 is mandatory, and the word 'nearest' in the statute has a specific intention. The Court relied on legal precedents, including the judgment in Mohd. Jabir v. State of NCT of Delhi, to emphasize the importance of complying with the statutory provisions. The Court thus added, “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.”

The Court allowed the bail application and added, “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 underway. No useful purpose will be served by keeping the applicant in judicial custody any further.”

Cause Title: Aabid Khan v. State Govt. Of NCT Of Delhi, [2023:DHC:8675]

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