# Neelam Devi v. State of U.P

- **Citation:** (2023) 2 ILRA 508
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-05
- **Case number:** Criminal Misc. Ist Bail Application No. 29318 of 2022
- **Bench:** Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/neelam-devi-v-state-of-u-p-49708
- **Pages:** 11

## Headnote

(A) Criminal Law - Bail - Narcotic Drugs
and Psychotropic Substances Act, 1985 -
Section 21/22, Section 42 - Power of
entry, search, seizure and arrest without
warrant or authorization , Section 37 -
Offences to be cognizable and nonbailable , Bail can only be granted to an
accused involving commercial quantity
when there is a reasonable ground that he
is not guilty and he will not commit any
offence after released on bail. (Para -11)

(B)
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985 - Section 50 -
Conditions under which search of persons
shall be conducted - if in spite of
appraising the right of accused he/she did
not choose either to be searched before a
Magistrate or a Gazetted Officer then
search may be taken by the empowered
officer and it is not imperative on his part
to take the accused either before a
Magistrate or a Gazetted Officer. (Para -
15)

Commercial quantity of Alprazolam powder (240
gms) - recovered from possession of applicant -
more than commercial quantity - before taking
search - empowered officer apprised - right to
be searched either before a Magistrate or a
Gazetted Officer - applicant did not opt to be
searched either before a Magistrate or a
Gazetted Officer - with consent search was
made by two female police constables -
empowered officer complied provisions of
Section 50 of NDPS Act.(Para - 16)

HELD:-Question whether or not the procedure
prescribed
has
been
followed
and
the
requirement of Section 50 of NDPS Act had
been met, is a matter of trial (case of Vijaysinh
Chandubha Jadeja) . Compliance of Section 50
of the NDPS Act has been made, so no finding
can be recorded that it was not complied with.
Not a fit case to enlarge applicant on bail.
(Para - 20,21,22)
2 All. Neelam Devi Vs. State of U.P.
509
Bail application rejected. (E-7)

List of Cases cited:-

## Text

508 INDIAN LAW REPORTS ALLAHABAD SERIES
further delay the matter. This Court having
found that the principles of Natural Justice
have been utterly violated and the scheme
of the Code and the Rules has been
thrashed by the Tahsildar concerned, the
order impugned dated 04.01.2023 cannot
be sustained.

37. In view of above, the writ petition
succeeds and is allowed. A writ of
certiorari is issued quashing the order dated
04.01.2023, (annexure No. 4 to the writ
petition) rendering the recall/restoration
application as infructuous. The proceedings
under section 67 of the U.P. Revenue Code,
2006 covered by Case No. 260 of 2022 are
restored to their original number and status.

38. The petitioner shall submit his
objections against the notice within a
period
of
one
month
from
today.
Thereafter, the authority concerned shall
conduct proceedings strictly in consonance
with section 67 of the U.P. Revenue Code,
2006 read with Rule 67 of the Rules of
2016 and after giving full opportunity of
hearing to the petitioner for leading
evidence, etc., the proceedings shall be
decided within a period of six months from
the date of certified copy of this order is
produced before him.
----------
(2023) 2 ILRA 508
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.01.2023

BEFORE

THE HON'BLE SAMEER JAIN, J.

Criminal Misc. Ist Bail Application No. 29318 of
2022

Neelam Devi ...Applicant
Versus
State of U.P. ...Opposite Party
Counsel for the Applicant:
Sri Vivek Sharma

Counsel for the Opposite Party:
G.A.

(A) Criminal Law - Bail - Narcotic Drugs
and Psychotropic Substances Act, 1985 -
Section 21/22, Section 42 - Power of
entry, search, seizure and arrest without
warrant or authorization , Section 37 -
Offences to be cognizable and nonbailable , Bail can only be granted to an
accused involving commercial quantity
when there is a reasonable ground that he
is not guilty and he will not commit any
offence after released on bail. (Para -11)

(B)
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985 - Section 50 -
Conditions under which search of persons
shall be conducted - if in spite of
appraising the right of accused he/she did
not choose either to be searched before a
Magistrate or a Gazetted Officer then
search may be taken by the empowered
officer and it is not imperative on his part
to take the accused either before a
Magistrate or a Gazetted Officer. (Para -
15)

Commercial quantity of Alprazolam powder (240
gms) - recovered from possession of applicant -
more than commercial quantity - before taking
search - empowered officer apprised - right to
be searched either before a Magistrate or a
Gazetted Officer - applicant did not opt to be
searched either before a Magistrate or a
Gazetted Officer - with consent search was
made by two female police constables -
empowered officer complied provisions of
Section 50 of NDPS Act.(Para - 16)

HELD:-Question whether or not the procedure
prescribed
has
been
followed
and
the
requirement of Section 50 of NDPS Act had
been met, is a matter of trial (case of Vijaysinh
Chandubha Jadeja) . Compliance of Section 50
of the NDPS Act has been made, so no finding
can be recorded that it was not complied with.
Not a fit case to enlarge applicant on bail.
(Para - 20,21,22)
2 All. Neelam Devi Vs. State of U.P.
509
Bail application rejected. (E-7)

List of Cases cited:-

1. Vijaysinh Chandubha Jadeja Vs St. of Guj.,
(2011) 1 SCC 609

2. St. of Punj. Vs Baldev Singh (1999) 6 SCC
172

3. Nabi Alam Vs St. (Govt. of NCT of Delhi)
MANU/DE/1045/2021

(Delivered by Hon'ble Sameer Jain, J.)

1. Heard Sri Vivek Sharma, learned
counsel for the applicant and Sri Ravi Kant
Kushwaha, learned A.G.A. for the State.

2. The instant bail applicant has been
moved on behalf of applicant to release him
on bail during trial in Case Crime No. 608
of 2022 under Section 21/22 of NDPS Act,
Police Station- Highway, District- Mathura.

3. According to the prosecution case
on 3.6.2022 at about 10:29 A.M. from the
possession of the applicant 240 gms. of
Alprazolam powder was recovered.

4. Learned counsel for the applicant
submits that entire allegation made against
the applicant is totally false and baseless
and
nothing
incriminating
has
been
recovered from the possession of applicant.

4.1 He next submitted that even
at the time of search and recovery
mandatory provisions of Section 50 of
NDPS Act have not been complied.

4.2. He submits, although from the
perusal of the recovery memo, it appears that
an option was given to the applicant that if
she wants, she may give her search either
before a Gazetted Officer or a Magistrate but
in fact no such option was ever given to the
applicant and only with intention to show the
compliance of Section 50 of NDPS Act, it
has been noted in the recovery memo.

4.3 He further submits, even in
view of the judgment of Apex Court passed
in case of Arif Khan @ Agha Khan Vs. State
of Uttarakhand, 2018 AIR (SC) 2123 no
compliance of Section 50 of NDPS Act at the
time of search was made as indisputedly
applicant did not either produce before
Magistrate or Gazetted Officer and her search
was made by the police personnel at alleged
spot of recovery.

4.4. Learned counsel for the
applicant urged that in view of the law laid
down in case of Arif Khan (Supra), it was
imperative for searching officer to produce
applicant before a Magistrate or Gazetted
Officer which is not done in the present
matter and, therefore, considering the fact
that mandatory provisions of Section 50 of
NDPS Act have not been complied with
entire recovery vitiates.

4.5. Learned counsel also placed
reliance on the judgement and order passed
by this court in Criminal Misc. Bail
Application No. 27291 of 2020 Mohd.
Asageer Vs. NCB.

4.6. Learned counsel for the
applicant further submits, applicant is a lady
and she is not having any criminal history
and she is in jail in the present matter since
03.06.2022 i.e. for last more than six months
and, therefore, considering the facts and
circumstances of the case and detention of
applicant she should be released on bail.

5. Per contra, learned A.G.A opposed
the prayer for bail and submits that from
the possession of the applicant 240 gms. of
Alprazolam powder was recovered which
510 INDIAN LAW REPORTS ALLAHABAD SERIES
involves
commercial
quantity
as
commercial quantity of Alprazolam powder
is only 100 gms.

6. Learned A.G.A further submits that
before search an option was given to the
applicant that if she wants then she may be
searched either before a Magistrate or a
Gazetted Officer and from the perusal of
the recovery memo it further reflects that it
was also stated to her (applicant) that it is
her right but in spite of the option given to
her, she did not opt to be searched either
before a Magistrate or a Gazetted Officer
and she stated that she may be searched by
the Searching Officer and thereafter her
search was made by two female police
constables and therefore, from the perusal
of the recovery memo dated 03.06.2022 it
appears that provisions of Section 50 of
NDPS Act have been duly complied with in
its
letter
and
spirit
and,
therefore,
considering the non obstante clause of
Section 37 of NDPS Act, applicant should
not be released on bail.

7. I have heard both the parties and
perused the record of the case.

8. Indisputedly, from the possession
of the applicant commercial quantity of
Alprazolam
powder
(240
gms)
was
recovered.

9 . Section 37 of the NDPS Act
regulates the bail involving commercial
quantity and runs as under:

"37. Offences to be cognizable
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 cognizable;

(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."

10. Therefore, as per Section 37 of
NDPS Act no person accused for offences
under NDPS Act involving commercial
quantity shall be released on bail unless:

(a) Public prosecutor has been
given an opportunity to oppose the bail
application,

(b) The Court is satisfied that
there
are
reasonable
grounds
for
believing that accused is not guilty of
such offence,

(c) He is not likely to commit any
offence while on bail.
2 All. Neelam Devi Vs. State of U.P.
511

11. Therefore, from perusal of the
Section 37 of the NDPS Act it appears that
bail can only be granted to an accused
involving commercial quantity when there
is a reasonable ground that he is not guilty
and he will not commit any offence after
released on bail.

12. Learned counsel for the applicant
with regard to the condition "(b)"of Section
37 of NDPS Act submitted that as
mandatory provisions of Section 50 have
not been complied at the time of search,
therefore, there is reason to believe that he
is not guilty as Section 50 of NDPS Act is
mandatory and its non-compliance will be
resulted in the acquittal of applicant. To
analyze the argument advanced by learned
counsel for the applicant, it is necessary to
refer Section 50 of NDPS Act which is
extracted below:

"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.

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."

13. From the perusal of Section 50 of the
NDPS Act it appears that according to the
Section 50 (1) of NDPS Act the officer
authorized to search shall, if such person so
requires, to take such person to nearest Gazetted
Officer of any department mention in Section
42 of NDPS Act or to the nearest Magistrate,
therefore, as per Section 50 of NDPS Act, if an
accused person opted to be searched either
before a Gazetted Officer or a Magistrate then it
is imperative on the part of Searching Officer to
take him before such Officer but if even after
giving option the accused did not opt to be
searched either before a Magistrate or a
Gazetted Officer then he can make a search
himself without taking the accused either before
a Magistrate or a Gazetted Officer.

14. The Constitution Bench of the
Apex
Court
in
case
of
Vijaysinh
512 INDIAN LAW REPORTS ALLAHABAD SERIES
Chandubha Jadeja Vs. State of Gujarat
(2011) 1 SCC 609 after discussing the
judgment of another Constitution Bench of
the Supreme Court in case of State of
Punjab Vs. Baldev Singh (1999) 6 SCC
172 observed as follows with regard to
provisions of Section 50 of NDPS Act:

"23. In the above background, we
shall now advert to the controversy at
hand. For this purpose, it would be
necessary to recapitulate the conclusions,
arrived at by the Constitution Bench in
Baldev Singh case (supra). We are
concerned
with
the
following
conclusions:(SCC pp. 208-10, Para 57).

"(1) That when an 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 concerned of his right under
sub-section (1) of Section 50 of being taken
to the nearest gazetted officer or the
nearest Magistrate for making the search.
However,
such
information
may
not
necessarily be in writing.

(2) That failure to inform the
person concerned about the existence of his
right to be searched before a gazetted
officer or a Magistrate would cause
prejudice to an accused.

(3) That a search made by an
empowered officer, on prior information,
without informing the person of his right
that if he so requires, he shall be taken
before a gazetted officer or a Magistrate
for search and in case he so opts, failure
to conduct his search before a gazetted
officer or a Magistrate, may not vitiate
the trial but would render the recovery of
the illicit article suspect and vitiate the
conviction and sentence of an accused,
where the conviction has been recorded
only on the basis of the possession of the
illicit article, recovered from his person,
during a search conducted in violation of
the provisions of Section 50 of the Act.

(5) That 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
the evidence led at the trial. Finding on
that issue, one way or the other, would be
relevant for recording an order of
conviction or acquittal. Without giving an
opportunity
to
the
prosecution
to
establish, at the trial, that the provisions
of Section 50 and, particularly, the
safeguards provided therein were duly
complied
with,
it
would
not
be
permissible to cut short a criminal trial.

(6) That in the context in which
the protection has been incorporated in
Section 50 for the benefit of the person
intended to be searched, we do not
express
any
opinion
whether
the
provisions of Section 50 are mandatory
or directory, but hold that failure to
inform the person concerned of his right
as emanating from sub-section (1) of
Section 50, may render the recovery of
the
contraband
suspect
and
the
conviction and sentence of an accused
bad and unsustainable in law.

(7) That an illicit article seized
from the person of an accused during
search conducted in violation of the
safeguards provided in Section 50 of the
Act cannot be used as evidence of proof of
unlawful possession of the contraband on
the accused though any other material
recovered during that search may be relied
upon
by
the
prosecution,
in
other
proceedings,
against
an
accused,
2 All. Neelam Devi Vs. State of U.P.
513
notwithstanding the recovery of that
material during an illegal search."

24. Although the Constitution
Bench in Baldev Singh case did not decide
in absolute terms the question whether or
not Section 50 of the NDPS Act was
directory or mandatory yet it was held that
provisions of sub-section (1) of Section 50
make it imperative for the empowered
officer to "inform" the person concerned
(suspect) about the existence of his right
that if he so requires, he shall be searched
before a gazetted officer or a Magistrate;
failure to "inform" the suspect about the
existence of his said right would cause
prejudice to him, and in case he so opts,
failure to conduct his search before a
gazetted officer or a Magistrate, may not
vitiate the trial but would render the
recovery of the illicit article suspect and
vitiate the conviction and sentence of an
accused, where the conviction has been
recorded only on the basis of the
possession of the illicit article, recovered
from the person during a search conducted
in violation of the provisions of Section 50
of the NDPS Act. The Court also noted that
it was not necessary that the information
required to be given under Section 50
should be in a prescribed form or in
writing but it was mandatory that the
suspect was made aware of the existence of
his right to be searched before a gazetted
officer or a Magistrate, if so required by
him. We respectfully concur with these
conclusions. Any other interpretation of the
provision would make the valuable right
conferred on the suspect illusory and a
farce.

25. As noted above, sub-sections
(5) and (6) were inserted in Section 50 by
Act 9 of 2001. It is pertinent to note that
although by the insertion of the said two
sub-sections, the rigour of strict procedural
requirement is sought to be diluted under
the circumstances mentioned in the sub-
sections, viz. when the authorised officer
has reason to believe that any delay in
search of the person is fraught with the
possibility of the person to be searched
parting with possession of any narcotic
drug or psychotropic substance etc., or
article or document, he may proceed to
search the person instead of taking him to
the nearest gazetted officer or Magistrate.
However, even in such cases a safeguard
against any arbitrary use of power has
been provided under sub-section (6). Under
the said sub-section, the empowered officer
is obliged to send a copy of the reasons, so
recorded, to his immediate official superior
within seventy two hours of the search. In
our opinion, the insertion of these two subsections does not obliterates the mandate of
sub-section (1) of Section 50 to inform the
person, to be searched, of his right to be
taken before a gazetted officer or a
Magistrate.

26. The object and the effect of
insertion of sub-sections (5) and (6) were
considered by a Constitution Bench of this
Court, of which one of us (D.K. Jain, J.)
was a member, in Karnail Singh Vs. State
of Haryana13. Although in the said
decision the Court did observe that by
virtue of insertion of sub-sections (5) and
(6), the mandate given in Baldev Singh
case (supra) is diluted but the Court also
opined that it cannot be said that by the
said insertion, the protection or safeguards
given to the suspect have been taken away
completely. The Court observed : (Karnail
Singh case13, SCC p. 553, para 31)

"31. ...Through this amendment
the strict procedural requirement as
mandated by Baldev Singh case was
514 INDIAN LAW REPORTS ALLAHABAD SERIES
avoided as relaxation and fixing of the
reasonable time to send the record to the
superior official as well as exercise of
Section 100 Cr.P.C. was included by the
legislature. The effect conferred upon the
previously mandated strict compliance with
Section 50 by Baldev Singh case was that
the procedural requirements which may
have
handicapped
an
emergency
requirement of search and seizure and give
the suspect a chance to escape were made
directory based on the reasonableness of
such emergency situation. Though it cannot
be said that the protection or safeguard
given to the suspects have been taken away
completely but certain flexibility in the
procedural norms were adopted only to
balance
an
urgent
situation.
As
a
consequence the mandate given in Baldev
Singh case is diluted."

27. It can, thus, be seen that apart
from the fact that in Karnail Singh, the
issue was regarding the scope and
applicability of Section 42 of the NDPS Act
in the matter of conducting search, seizure
and
arrest
without
warrant
or
authorisation, the said decision does not
depart from the dictum laid down in Baldev
Singh case insofar as the obligation of the
empowered officer to inform the suspect of
his right enshrined in sub-section (1) of
Section 50 of the NDPS Act is concerned. It
is also plain from the said paragraph that
the flexibility in procedural requirements in
terms of the two newly inserted subsections can be resorted to only in
emergent
and
urgent
situations,
contemplated in the provision, and not as a
matter of course. Additionally, sub- section
(6) of Section 50 of the NDPS Act makes it
imperative
and
obligatory
on
the
authorised officer to send a copy of the
reasons recorded by him for his belief in
terms of sub-section (5), to his immediate
superior officer, within the stipulated time,
which exercise would again be subjected to
judicial scrutiny during the course of trial.

28. We shall now deal with the
two decisions, referred to in the referral
order, wherein "substantial compliance"
with the requirement embodied in Section
50 of the NDPS Act has been held to be
sufficient. In Prabha Shankar Dubey, a two
Judge bench of this Court culled out the
ratio of Baldev Singh case, on the issue
before us, as follows: (Prabha Shankar
Dubey case, SCC p. 64, para 11)

"11. ...What the officer concerned
is required to do is to convey about the
choice the accused has. The accused
(suspect) has to be told in a way that he
becomes aware that the choice is his and
not of the officer concerned, even though
there is no specific form. The use of the
word "right" at relevant places in the
decision of Baldev Singh case seems to be
to lay effective emphasis that it is not by the
grace of the officer the choice has to be
given but more by way of a right in the
"suspect" at that stage to be given such a
choice and the inevitable consequences that
have to follow by transgressing it."

However, while gauging whether
or not the stated requirements of Section 50
had been met on facts of that case, finding
similarity in the nature of evidence on this
aspect between the case at hand and
Joseph Fernandez, the Court chose to
follow the views echoed in the latter case,
wherein it was held that searching officer's
information to the suspect to the effect that
"if you wish you may be searched in the
presence of a gazetted officer or a
Magistrate" was in substantial compliance
with the requirement of Section 50 of the
NDPS
Act.
Nevertheless,
the
Court
indicated the reason for use of expression
2 All. Neelam Devi Vs. State of U.P.
515
"substantial compliance" in the following
words: (Prabha Shankar Dubey case2,
SCC p. 64, para 12)

"12. The use of the expression
"substantial compliance" was made in the
background that the searching officer had
Section 50 in mind and it was unaided by
the interpretation placed on it by the
Constitution Bench in Baldev Singh case. A
line or a word in a judgment cannot be
read in isolation or as if interpreting a
statutory provision, to impute a different
meaning to the observations."

It is manifest from the aforeextracted
paragraph
that
Joseph
Fernandez does not notice the ratio of
Baldev Singh and in Prabha Shankar
Dubey, Joseph Fernandez is followed
ignoring the dictum laid down in Baldev
Singh case.

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 person intended to be
searched of his right to be searched before
a gazetted officer or a Magistrate. We have
no hesitation in holding that in so far as the
obligation of the authorised officer under
sub-section (1) of Section 50 of the NDPS
Act is concerned, it is mandatory and
requires a strict compliance. Failure to
comply with the provision would render the
recovery of the illicit article suspect and
vitiate the conviction if the same is
recorded only on the basis of the recovery
of the illicit article from the person of the
accused during such search. Thereafter, the
suspect may or may not choose to exercise
the right provided to him under the said
provision."

15. Therefore, from the judgement of
the Apex Court passed in case of Vijaysinh
Chandubha Jadeja (supra), it is apparent
that provisions of Section 50 of the NDPS
Act are mandatory and it is the duty of
empowered officer to apprise the accused
that he is having right to be searched either
before a Magistrate or a Gazetted Officer
and if no such option is given to the
accused then entire recovery would be
vitiated but from the perusal of the
provisions of Section 50 of NDPS Act as
well
as
from
the
judgements
of
Constitutional Benches of Apex Court in
cases
of
Baldev Singh
(supra)
and
Vijaysinh Chandubha Jadeja (supra), it is
also clear that if in spite of appraising the
right of accused he/she did not choose
either to be searched before a Magistrate or
a Gazetted Officer then search may be
taken by the empowered officer and it is
not imperative on his part to take the
accused either before a Magistrate or a
Gazetted Officer.
16. The similar issue arose before Delhi
High Court and in light of the judgement of
Arif Khan (supra), learned single Judge
referred the matter to larger bench and
Division Bench of the High Court of Delhi
in case of Nabi Alam Vs. State (Govt. of
NCT of Delhi) MANU/DE/1045/2021 after
analyzing the judgement of Vijaysinh
Chandubha Jadeja (supra) and Baldev
Singh (supra) observed as under:

"20. On a plain reading of the
above decision, it is clear that the
obligation of the empowered officer under
516 INDIAN LAW REPORTS ALLAHABAD SERIES
sub-Section (1) of Section 50 of the NDPS
Act makes it imperative on his part to
apprise the person intended to be searched,
of his right to be searched before a
Gazetted Officer or Magistrate; failure to
comply with which prescription, which
requires strict compliance, would render
the recovery of the illicit article suspect
and vitiate the conviction if the same is
recorded only on the basis of the recovery
of the illicit article from the person accused
during such search or suspected of being in
possession of any narcotic drug or
psychotropic substance during the said
search. However, for the purposes of the
issue to be determined in the instant case, it
is relevant and pertinent to note that the
Constitution Bench of the Hon'ble Supreme
Court of India in Vijaysinh Chandubha
Jadeja (supra) clearly observed that
"Thereafter, the suspect may or may not
choose to exercise the right provided to him
under the said proviso". The sequitur to
this observation of the Supreme Court
leaves no manner of doubt that once the
suspect
has
been
apprised
by
the
empowered officer of his right to be
searched before a Gazetted Officer or a
Magistrate, but chooses not to exercise that
right, the empowered officer can conduct
the
search
of
such
person
without
producing him before a Gazetted Officer or
a Magistrate, for the said purpose.

21. Coming now to the emphasis
placed on behalf of the applicant/accused
on the judgment rendered by the Supreme
Court in Arif Khan @ Agha Khan (supra),
the question that needs to be considered is
whether that decision is 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.

22. In this behalf, it is necessary
to consider the observations of the Hon'ble
Supreme Court in Arif Khan @ Agha Khan
(supra), the relevant paragraphs of which
decision are being extracted hereinbelow:

"18. What is the true scope and
object of Section 50 of the NDPS Act, what
are the duties, obligation and the powers
conferred on the authorities under Section
50 and
whether
the
compliance
of
requirements of Section 50 are mandatory
or directory, remain no more res integra
and are now settled by the two decisions of
the Constitution Bench of this Court in
State of Punjab v.Baldev Singh [State of
Punjab
v.
Baldev
Singh,
MANU/SC/0981/1999 : (1999) 6 SCC 172 :
1999 SCC (Cri) 1080] and Vijaysinh
Chandubha Jadeja [Vijaysinh Chandubha
Jadeja
v.
State
of
Gujarat,
MANU/SC/0913/2010 : (2011) 1 SCC 609]
.

19. Indeed, the latter Constitution
Bench decision rendered in Vijaysinh
Chandubha Jadeja (supra) has settled the
aforementioned questions after taking into
considerations all previous case law on the
subject.

20. Their Lordships have held in
Vijaysinh Chandubha Jadeja that the
requirements of Section 50 of the NDPS Act
are
mandatory
and,
therefore,
the
provisions of Section 50 must be strictly
complied with. It is held that it is
imperative on the part of the police officer
to apprise the person intended to be
searched of his right under Section 50 to be
searched only before a gazetted officer or a
2 All. Neelam Devi Vs. State of U.P.
517
Magistrate. It is held that it is equally
mandatory on the part of the authorised
officer to make the suspect aware of the
existence of his right to be searched before
a gazetted officer or a Magistrate, if so
required by him and this requires a strict
compliance. It is ruled that the suspect
person may or may not choose to exercise
the right provided to him under Section 50
of the NDPS Act but so far as the officer is
concerned, an obligation is cast upon him
under Section 50 of the NDPS Act to
apprise the suspect of his right to be
searched before a gazetted officer or a
Magistrate."

23. A plain reading of the above
extracted paragraphs leads to but one
inescapable conclusion that their Lordships
of the Hon'ble Supreme Court whilst
following the ratio of the decision of the
Constitution
Bench
in
Vijaysinh
Chandubha Jadeja (supra) held that the
same has settled the position of law in this
behalf to the effect that, whilst it is
imperative on the part of the empowered
officer to apprise the person of his right to
be searched only before a Gazetted Officer
or Magistrate; and this requires a strict
compliance;
the
Hon'ble
Court
simultaneously proceeded to reiterate that,
in Vijaysinh Chandubha Jadeja (supra) "it
is ruled that the suspect person may or may
not choose to exercise the right provided to
him under Section 50 of the NDPS Act". In
this view of the matter, the reliance placed
by counsel for the applicant/accused on the
decision of the Supreme Court in Arif Khan
@ Agha Khan (supra), in our respectful
view does not come to his aid.

24. Having considered the case
law on the subject, we are inclined to
answer the Reference in the following
manner.

25. In view of the discussion in
the foregoing paragraphs, we answer the
issue that arises for consideration in the
present Reference in the negative.

26. For the sake of clarity it is
held that, axiomatically, there is no
requirement to conduct the search of the
person, suspected to be in possession of a
narcotic drug or a psychotropic substance,
only in the presence of a Gazetted Officer
or Magistrate, if the person proposed to be
searched, after being apprised by the
empowered officer of his right under
Section 50 of the NDPS Act to be searched
before a Gazetted Officer or Magistate
categorically waives such right by electing
to be searched by the empowered officer.
The words "if such person so requires", as
used in Section 50(1) of the NDPS Act
would be rendered otiose, if the person
proposed to be searched would still be
required to be searched only before a
Gazetted Officer or Magistrate, despite
having expressly waived "such requisition",
as mentioned in the opening sentence of
sub-Section (2) of Section 50 of the NDPS
Act. In other words, the person to be
searched is mandatorily required to be
taken by the empowered officer, for the
conduct of the proposed search before a
Gazetted Officer or Magistrate, only "if he
so requires", upon being informed of the
existence of his right to be searched before
a Gazetted Officer or Magistrate and not if
he waives his right to be so searched
voluntarily, and chooses not to exercise the
right provided to him under Section 50 of
the NDPS Act."

17. Therefore, although in the case of
Arif Khan (supra) Hon'ble Apex Court held
that it was imperative on part of Searching
Officer to take the accused either before a
Magistrate or a Gazetted Officer and his
518 INDIAN LAW REPORTS ALLAHABAD SERIES
search ought to have been made before a
Magistrate or a Gazetted Officer, in spite of
the fact that he waived his right to be
searched either before a Magistrate or a
Gazetted Officer but in light of the
Judgement of the Constitution Bench of
Apex
Court
in
case
of
Vijaysinh
Chandubha Jadeja (supra) no benefit can be
extended in favour of applicant in view of
the observation made in case of Arif Khan
(supra).

18. As in case at hand, from the
possession of the applicant 240 gms. of
Alprazolam powder was recovered which is
more than commercial quantity and before
taking search empowered officer apprised her
that she is having right to be searched either
before a Magistrate or a Gazetted Officer but
in spite of that she (applicant) did not opt to
be searched either before a Magistrate or a
Gazetted Officer and with her consent her
search was made by two female police
constables therefore, in view of the law laid
down in the judgment of Constitution Bench
of Apex Court in case of Vijaysinh
Chandubha Jadeja (supra) empowered officer
has complied the provisions of Section 50 of
NDPS Act and it cannot be said that there is a
violation of Section 50 of NDPS Act.

19. Further, at the stage of bail it is
only to see that whether prima facie
provisions of Section 50 of NDPS Act have
been complied with or not.

20. At the stage of bail it cannot be
precisely
ascertained
that
whether
compliance of Section 50 of NDPS Act has
been substantially made or not, it can only
be ascertained during trial.

21. The Constitution Bench of Apex
Court in case of Vijaysinh Chandubha
Jadeja (supra) observed that the question
whether or not the procedure prescribed has
been followed and the requirement of
Section 50 of NDPS Act had been met, is a
matter of trial (see Para 31).

22. As in the present matter, from the
perusal of the recovery memo prima facie it
appears that compliance of Section 50 of
NDPS Act has been made, therefore, at this
stage no finding could be recorded that it
was not complied.

23. From the discussion made above,
I find no merit in the argument advanced
by learned Counsel for the applicant and as
from the possession of the applicant
commercial quantity of Aprazolam powder,
a
narcotic
substance
was
recovered,
therefore, considering the provisions of
Section 37 of NDPS Act, in my view it is
not a fit case in which applicant should be
enlarged on bail.

24. Accordingly, the instant bail
application is rejected.
----------
(2023) 2 ILRA 518
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.01.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 1405 of 1990

Ompal ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri M.M. Tripathi, Sri Apul Misra, Sri
Bhuvnesh Kumar Singh

Counsel for the Opposite Party: