# Wahid Ali v. Narcotics Control Bureau Lucknow

- **Citation:** (2023) 7 ILRA 701
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-12
- **Case number:** Criminal Misc. Bail Application No. 13590 of 2021
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/wahid-ali-v-narcotics-control-bureau-lucknow-50597
- **Pages:** 12

## Headnote

Law
-
Code
of
Criminal
Procedure,1973- Section 100 - Narcotic
Drugs and Psychotropic Substances Act,
1985- Section 50-substantial illegalities in the
manner of search and seizure-admittedly as per
the recovery memo, the search was carried out
on persons and the vehicle -allegedly in the
presence of a Gazetted Officer- Gazetted Officer
has not signed the recovery memo-recovery
against mandate of sec 50- it is an essential
that independent person or a Gazetted Officer
or a Magistrate before whom the search is
carried out necessarily affixes his signatureApplicant entitled for bail.

Bail Application allowed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,924 of 40,337. This is a partial read: ask again with offset=39924 for what follows._

7 All. Wahid Ali Vs. Narcotics Control Bureau Lucknow
701

36. Therefore, the applicants are
granted liberty to appear before the
Magistrate and file a fresh application
under Section 437 Cr.P.C. within a period
of 7 days from today. In case such an
application is filed within the aforesaid
period, the same shall be decided on its
merit in accordance with the law, without
being influenced by the any observation
made in the order dated 16.06.2022 passed
by the Additional Chief Judicial Magistrate
IV, Court No. 28, Lucknow, or in the order
dated 12.07.2022 passed by the Additional
Session Judge, Court No. 3, Lucknow and
the Magistrate shall decide the application
keeping in view the observations made in
this
order,
more
specifically,
the
observations made in paragraphs 24, 25 and
31.
The
Magistrate
shall
take
into
consideration the mandate of the Hon'ble
Supreme Court in referred to in paras 32,
34 and 35 above.

37. The application stands disposed
off with the aforesaid observations,
----------
(2023) 7 ILRA 701
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.07.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Criminal Misc. Bail Application No. 13590 of
2021

Wahid Ali ...Applicant
Versus
Narcotics Control Bureau Lucknow
 ...Opposite Party

Counsel for the Applicant:
Mukesh Kumar Tewari, Anil Kumar Pandey

Counsel for the Opposite Party:
Akhilesh Kumar Awasthi

Criminal
Law
-
Code
of
Criminal
Procedure,1973- Section 100 - Narcotic
Drugs and Psychotropic Substances Act,
1985- Section 50-substantial illegalities in the
manner of search and seizure-admittedly as per
the recovery memo, the search was carried out
on persons and the vehicle -allegedly in the
presence of a Gazetted Officer- Gazetted Officer
has not signed the recovery memo-recovery
against mandate of sec 50- it is an essential
that independent person or a Gazetted Officer
or a Magistrate before whom the search is
carried out necessarily affixes his signatureApplicant entitled for bail.

Bail Application allowed. (E-9)

List of Cases cited:

1. U.O.I.Vs Shiv Shanker Kesari reported in
(2207) 3 SCC (Cri) 505

2. Sk. Raju @ Abdul Haque @ Jagga Vs St. of
W.B. reported in 2019 (106) ACC 303

3. St. of Rajasthan Vs Parmanand reported in
2014 2 SCC (Cri) 563

4. Sanjeev & anr.Vs St. of Himachal Pradesh
reported in 2022 2 SCC (Cri) 522

5. U.O.I.Vs Bal Mukund & ors.reported in 2010 1
SCC (Cri) 54

6. Avtar Singh & ors.Vs St. of Pun. reported in
2003 (1) JIC 134 (SC)

7. Criminal Appeal No.523 of 2005 decided in
the case of Ranjitsingh

8. Brahmajeetsing Sharma Vs St. of Mah. & anr.

9. Criminal Misc. Bail Application No.42918 of
2021 decided in the case of

10. Aditya Kumar Vs U.O.I.Through Narcotic
Control Bureau, Lucknow

11. U.O.I.Vs Mohd Nawaz Khan reported in AIR
2021 SUPREME COURT 4476
702 INDIAN LAW REPORTS ALLAHABAD SERIES
12. St. of Kerala Etc. Vs Rajesh Etc. reported in
AIR 2020 SUPREME COURT 721

13. Union of Indian Vs Ratan Malik @ Habul
reported in 2009 AIR SCW 3648

14. Mohd Muslim @ Hussain Vs St. (NCT of
Delhi) reported in 2023 LiveLaw (SC) 260

15. St. of Punj. Vs Baldev Singh 1999 Vol.VI SCC
page 172

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard learned counsel for the
applicant
and
Shri
Akhilesh
Kumar
Awasthi, learned counsel for the and
perused the record.

2. The accused-applicant, who alleges
that he was the driver of the vehicle in
question, seeks bail in Case Crime No.29 of
2021 under section 8/21/25/29 N.D.P.S.
Act, P.S. - N.C.B. Lucknow, DistrictLucknow.

3. From the documents on record, it
appears that on 12.07.2021, a search was
carried out based upon the information
received from the informers that huge
quantity of drug is being transported. From
the search memo, which is on record
indicates that on receiving the said
information, the team of the Narotics
Control Bureau, Lucknow reached Chauka
Ghat Railway Crossing and on their call the
police team of the Police Station-Ram
Nagar also arrived. The memo also records
in terms of the information received, at
about 10:15 P.M., one Honda WRV Car
was passing which was stopped and in the
said car, two persons were sitting who are
Mohammad
Imran
and
Wahid
Ali
(applicant). It is further recorded that the
said two persons confessed before the team
of N.C.B. Lucknow the aforesaid fact of
carrying drugs. The memo also records that
the N.C.B. team duly informed the accused
of their rights under Section 50 of the Act,
the said applicant wanted the search to be
carried out in the presence of Gazetted
Officer and for complying with the
provisions of Section 50, the Circle Officer
Ram Nagar-Shri Dinesh Kumar Dubey was
contacted and was requested to come over
the spot. It further alleges that in presence
of the said Gazetted Officer both the
persons were searched in person and
nothing was found with them in person.
However, when the car was put on search,
Morphine was recovered which was kept in
a White Bag weighed at 2.250 Kg along
with currency notes of an amount of Rs.
2,00,000/-. The search memo on record
contains the signature of the two accused as
well as the officer of N.C.B. Lucknow.
Howsoever, it does not include the
signature of the Gazetted Officer- Shri D.K.
Dubey, in whose presence the search was
said to be carried out. In pursuance to the
search carried out and the recovery memo,
the samples were sent by the N.C.B. for
chemical analysis and the accused were
apprehended for being tried under the
N.D.P.S.
Act.
It
is
informed
that
subsequently a criminal complaint has been
filed against the said two accused in the
competent court of law and the trial is
going on. The present bail application has
been filed as the first bail application filed
by
the
applicant
was
rejected
on
12.08.2021 by the learned Special Judge,
N.D.P.S. Court at Barabanki.

4. The Counsel for the applicant
argues that there are substantial illegalities
in the manner in which the search and
seizure has been carried out. He argues that
admittedly as per the recovery memo, the
search was carried out on persons as well
as in the vehicle and allegedly in the
presence of a Gazetted Officer. He argues
7 All. Wahid Ali Vs. Narcotics Control Bureau Lucknow
703
that the Gazetted Officer has not signed the
recovery memo, which is also accepted by
the learned counsel for the respondent. In
the light of the said deficiency, he argues
that the entire recovery becomes suspect.
He also draws my attention to the mandate
of Section 50.

5. He specifically places reliance on
Section 50 sub-section 5 to argue that the
search has to be carried out in terms of the
mandate of Section 100 of the Code of
Criminal Procedure. He draws my attention
to Section 100 of the Cr.P.C. which is as
under:

"100. Persons in charge of closed
place to allow search.

(1) Whenever any place liable to
search or inspection under this Chapter is
closed, any person residing in, or being in
charge of, such place, shall, on demand of
the officer or other person executing the
warrant, and on production of the warrant,
allow him free ingress thereto, and afford
all reasonable facilities for a search
therein.

(2) If ingress into such place
cannot be so obtained, the officer or other
person executing the warrant may proceed
in the manner provided by sub- section (2)
of section 47.

(3) Where any person in or about
such place is reasonably suspected of
concealing about his person any article for
which search should be made, such person
may be searched and if such person is a
woman, the search shall be made by
another woman with strict regard to
decency.

(4) Before making a search under
this Chapter, the officer or other person
about to make it shall call upon two or
more
independent
and
respectable
inhabitants of the locality in which the
place to be searched is situate or of any
other locality if no such inhabitant of the
said locality is available or is willing to be
a witness to the search, to attend and
witness the search and may issue an order
in writing to them or any of them so to do.

(5) The search shall be made in
their presence, and a list of all things
seized in the course of such search and of
the places in which they are respectively
found shall be prepared by such officer or
other person and signed by such witnesses;
but no person witnessing a search under
this section shall be required to attend the
Court as a witness of the search unless
specially summoned by it.

(6) The occupant of the place
searched, or some person in his behalf,
shall, in every instance, be permitted to
attend during the search. and a copy of the
list prepared under this section, signed by
the said witnesses, shall be delivered to
such occupant or person.

(7) When any person is searched
under sub- section (3), a list of all things
taken possession of shall be prepared, and
a copy thereof shall be delivered to such
person.

(8) Any person who, without
reasonable cause, refuses or neglects to
attend and witness a search under this
section, when called upon to do so by an
order in writing delivered or tendered to
him, shall be deemed to have committed an
offence under section 187 of the Indian
Penal Code (45 of 1860 )."

6. On the strength of Section 100 subsection 5 of the Cr.P.C., as quoted
hereinabove, he argues that it is incumbent
that the search memo has to be signed by
the Gazetted officer as is authorized to do
704 INDIAN LAW REPORTS ALLAHABAD SERIES
so. On the strength of these two provisions
i.e. Section 50 sub-section 5 and Section
100 sub-section 5, the counsel for the
applicant argues that the search without a
signature does not satisfy the test of a valid
search provided under Section 50 of the
N.DP.S. Act.

7. Learned counsel for the applicant
further argues that in the present case, even
the mandatory requirement of Section 42
has not been followed with inasmuch as the
requirement of Section 42 sub-section 2
have not been complied with. He next
argues that the applicant was a driver and
thus no material exists to conclude that the
applicant had conscious possession over the
alleged drugs.

8. In support of the said arguments, he
draws my attention to the statement of the
co-accused who has stated that the drugs in
question were kept at his residence and
were transported through the vehicle and
the driver had driven the vehicle. He thus
argues that the applicant did not have any
conscious possession of the alleged drugs
and thus he cannot be tried for an offence
under the N.D.P.S. Act. He next argues that
the samples allegedly drawn from the
offending seized drugs were not forwarded
within a time span of 72 hours, which is a
mandatory requirement in terms of the
circular No.1/88. He further argues that
even the point No.1.5 of the said circular
requires that the sample should be drawn in
the presence of the witness was not done.
He further argues that the applicant has no
criminal antecedent and thus, he satisfies
the mandate of Section 37(b)(ii) of the
N.D.P.S. Act. He lastly argues that the
applicant has no criminal antecedents and
is in custody since 13.07.2021 and the
examination of the first witness out of
seven witnesses proposed to be examined is
going on and there is no likelihood of the
trial being concluded in the near future and
thus, he argues that pre-trial detention
violates the rights of the applicant under
Article 21 of the constitution of India. In
support of his argument as recorded above,
the counsel for the applicant has placed
reliance on the judgments of Hon'ble Apex
Court passed in Union of India vs. Shiv
Shanker Kesari reported in (2207) 3
SCC (Cri) 505; Sk. Raju @ Abdul Haque
@ Jagga vs. State of West Bengal
reported in 2019 (106) ACC 303; State of
Rajasthan vs.Parmanand reported in
2014 2 SCC (Cri) 563; Sanjeev and
another vs. State of Himachal Pradesh
reported in 2022 2 SCC (Cri) 522; Union
of India vs. Bal Mukund and others
reported in 2010 1 SCC (Cri) 54; Avtar
Singh and others vs. State of Punjab
reported in 2003 (1) JIC 134 (SC);
Criminal Appeal No.523 of 2005 decided
in the case of Ranjitsingh Brahmajeetsing
Sharma vs. State of Maharashtra and
Another and also the judgment of this
Court in Criminal Misc. Bail Application
No.42918 of 2021 decided in the case of
Aditya Kumar vs. Union of India
Through
Narcotic
Control
Bureau,
Lucknow.

9. Shri Akhilesh Kumar Awasthi
appearing on behalf of the respondent on
the other hand strongly raised objections to
the application for bail. He argues that the
argument raised by the counsel for the
applicant deserved to be rejected. He also
argues that insofar as the argument that the
Gazetted Officer has not signed the
recovery memo, he argues that the Gazetted
Officer was called and his signature were
taken on the notice sent to him however, he
argues that as the entire recovery procedure
takes time, by then the Gazetted Officer
had left. However, there is no reasons to
believe that the Gazetted Officer was not
7 All. Wahid Ali Vs. Narcotics Control Bureau Lucknow
705
present during the search operation as such
the recovery memo even if it does not bear
the signature of the Gazetted Officer would
satisfy the test of Section 50 read with
Section 100 of the Cr.P.C. He further argues
that the offending goods were recovered from
the vehicle in which both the accused were
occupants.
He
argues
that
there
is
presumption of conscious possession as there
is nothing on record to say that the applicant
is not knowing about the possession of the
drug which burden has to be discharged by
the applicant. He places strong reliance on the
judgments of the Hon'ble Supreme Court
passed in the case of Union of India vs.
Mohd Nawaz Khan reported in AIR 2021
SUPREME COURT 4476 wherein the
Honb'le Apex Court had considered the
scope of the conscious possession along with
the other issues that were raised before the
Hon'ble Apex Court. He further argues that
the conscious possession against the applicant
should be accepted by virtue of law as
clarified in the case of Mohd. Nawaz Khan
(supra) and he also places strong reliance on
the judgment of the Honb'le Apex Court in
the case of State of Kerala Etc. vs. Rajesh
Etc. reported in AIR 2020 SUPREME
COURT 721 which interpreted the word
'reasonable ground' used in the Section 37 of
the N.D.P.S. Act. He also placed heavy
reliance on the judgment of the Hon'ble Apex
Court in the case of Union of Indian vs.
Ratan Malik @ Habul reported in 2009
AIR SCW 3648 wherein the Hon'ble Apex
Court had held that while granting bail in
appeal, the relevant criteria such as not
finding anything from the possession, the
detention of the accused for a period of three
years and no chances of the appeal being
heard would not be a relevant criteria.

10. In the light of the said submission,
he argued that the bail application deserves to
be rejected. However, he does not dispute the
fact that the first witness is being examined
for establishing the offence in terms of the
complaint filed by the N.C.B. Lucknow. He
also does not dispute the fact that as many as
seven witness are proposed to be examined in
support of the allegations leveled in the
complaint. As regards the submission of the
counsel for the applicant that the samples
were not sent within a period of 72 days, he
argues that the samples were actually sent
however they were returned with remarks
'refused' probably because of the wrong
address. Thus, the said benefit cannot be
given in favour of the applicant as there was
no fault by the N.C.B. in sending the
samples. He further argues that there was
compliance of the mandate of Section 42 and
to that extent, the argument of the counsel for
the applicant merits rejection.

11. In terms of the arguments raised by
the counsels across the bar, as noted above,
this Court is to decide whether a case for
grant of bail is made out or not. Before going
into the merits of the contention, it is essential
to note that across the line of precedents
settled by the Hon'ble Supreme Court, it is
well settled that for grant of bail in respect of
commercial quantity, the conditions as
prescribed under Section 37 of the Act have
to be taken into consideration before granting
of the bail. Section 37 of the Act is 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 2[offences under
section 19 or section 24 or section 27A and
also for offences involving commercial
706 INDIAN LAW REPORTS ALLAHABAD SERIES
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.]"

12. In terms of the mandate of Section
37(1)(b)(ii), it is essential that the pubic
prosecutor be heard and it is also essential
that the Court should record its satisfaction
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. The word
'reasonable ground' for believing that the
accused is not guilty came up for
interpretation and the consistency in so far
as the phrase 'reasonable ground' is
concerned was summarized by the Hon'ble
Apex Court in the case of Union of India
through Narcotics Control Bureau vs.
Mohd. Nawaj Khan (supra). The relevant
paras are as under:

"19 The standard prescribed for
the grant of bail is 'reasonable ground to
believe' that the person is not guilty of the
offence. Interpreting the standard of
'reasonable grounds to believe', a twojudge Bench of this Court in Shiv Shanker
Kesari (supra), held that:

"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 that the accused is not guilty
of the offence charged.

8. The word "reasonable" has in
law the prima facie meaning of reasonable
in regard to those circumstances of which
the actor, called on to act reasonably,
knows or ought to know. It is difficult to
give an exact definition of the word
"reasonable".

"7.
...
In
Stroud's
Judicial
Dictionary, 4th Edn., p. 2258 states that it
would be unreasonable to expect an exact
definition of the word 'reasonable'. Reason
varies in its conclusions according to the
idiosyncrasy of the individual, and the
times and circumstances in which he thinks.
The reasoning which built up the old
scholastic logic sounds now like the
jingling of a child's toy."

(See Municipal Corpn. of Delhi v.
Jagan Nath Ashok Kumar [(1987) 4 SCC
497] (SCC p. 504, para 7) and Gujarat
Water Supply and Sewerage Board v.
Unique Erectors (Gujarat) (P) Ltd. [(1989)
1 SCC 532]

[...]

10.
The
word
"reasonable"
signifies "in accordance with reason". In
the ultimate analysis it is a question of fact,
whether a particular act is reasonable or
not depends on the circumstances in a
7 All. Wahid Ali Vs. Narcotics Control Bureau Lucknow
707
given situation. (See Municipal Corpn. of
Greater Mumbai v. Kamla Mills Ltd.
[(2003) 6 SCC 315]

11. The court while considering
the application for bail with reference to
Section 37 of the Act is not called upon to
record a finding of not guilty. It is for the
limited purpose essentially confined to the
question of releasing the accused on bail
that the court is called upon to see if there
are reasonable grounds for believing that
the accused is not guilty and records its
satisfaction about the existence of such
grounds. But the court has not to consider
the matter as if it is pronouncing a
judgment of acquittal and recording a
finding of not guilty."
(emphasis supplied)

20 Based on the above precedent,
the test which the High Court and this
Court are required to apply while granting
bail is whether there are reasonable
grounds to believe that the accused has not
committed an offence and whether he is
likely to commit any offence while on bail.
Given
the
seriousness
of
offences
punishable under the NDPS Act and in
order to curb the menace of drugtrafficking
in
the
country,
stringent
parameters for the grant of bail under the
NDPS Act have been prescribed."

13. The said phrase was also
explained by the Hon'ble Supreme Court in
the case of State of Kerala vs. Rajesh and
others
(supra)
wherein
the
Hon'ble
Supreme Court held as under:

"20. The scheme of Section 37
reveals that the exercise of power to grant
bail is not only subject to the limitations
contained under Section 439 of the CrPC,
but is also subject to the limitation placed
by Section 37 which commences with nonobstante clause. The operative part of the
said section is in the negative form
prescribing the enlargement of bail to any
person accused of commission of an
offence
under
the
Act,
unless
twin
conditions are satisfied. The first condition
is that the prosecution must be given an
opportunity to oppose the application; and
the second, is that the Court must be
satisfied that there are reasonable grounds
for believing that he is not guilty of such
offence. If either of these two conditions is
not satisfied, the ban for granting bail
operates."

14. On a plain reading of Section 37
(1) (b) (ii), to form an opinion that
reasonable grounds exists for believing that
he is not guilty, beside the test as laid down
by the Hon'ble Supreme Court and as
recorded above, the grounds for forming
opinion or view is that reasonable ground
exists that he may not be held guilty in the
trial.

15. Hon'ble Supreme Court had the
occasion to deal with the aspect of Section
37 and the conditions prescribed therein in
the case of Mohd Muslim @ Hussain vs.
State (NCT of Delhi) reported in 2023
LiveLaw (SC) 260. While dealing with the
scope of Section 37, Hon'ble Apex Court
observed as under:-

"18. The conditions which courts
have to be cognizant of are that there are
reasonable grounds for believing that the
accused is "not guilty of such offence" and
that he is not likely to commit any offence
while on bail. What is meant by "not guilty"
when all the evidence is not before the
court? It can only be prima facie
determination. That places the court's
discretion within a very narrow margin.
Given the mandate of the general law on
708 INDIAN LAW REPORTS ALLAHABAD SERIES
bails (Sections 436, 437 and 439, CrPC)
which classify offences based on their
gravity, and instruct that certain serious
crimes have to be dealt with differently
while considering bail applications, the
additional condition that the court should
be satisfied that the accused (who is in law
presumed to be innocent) is not guilty, has
to be interpreted reasonably. Further the
classification of offences under Special
Acts (NDPS Act, etc.), which apply over
and above the ordinary bail conditions
required to be assessed by courts, require
that the court records its satisfaction that
the accused might not be guilty of the
offence and that upon release, they are not
likely to commit any offence. These two
conditions have the effect of overshadowing
other conditions. In cases where bail is
sought, the court assesses the material on
record such as the nature of the offence,
likelihood of the accused co-operating with
the investigation, not fleeing from justice:
even in serious offences like murder,
kidnapping, rape, etc. On the other hand,
the court in these cases under such special
Acts, have to address itself principally on
two facts: likely guilt of the accused and
the likelihood of them not committing any
offence upon release. This court has
generally upheld such conditions on the
ground that liberty of such citizens have to
- in cases when accused of offences enacted
under special laws - be balanced against
the public interest.

19.
A
plain
and
literal
interpretation of the conditions under Section
37 (i.e., that Court should be satisfied that the
accused is not guilty and would not commit
any offence) would effectively exclude grant
of bail altogether, resulting in punitive
detention
and
unsanctioned
preventive
detention as well. Therefore, the only manner
in which such special conditions as enacted
under Section 37 can be considered within
constitutional parameters is where the court
is reasonably satisfied on a prima facie look
at the material on record (whenever the bail
application is made) that the accused is not
guilty. Any other interpretation, would result
in complete denial of the bail to a person
accused of offences such as those enacted
under Section 37 of the NDPS Act.

20. The standard to be considered
therefore, is one, where the court would look
at the material in a broad manner, and
reasonably see whether the accused's guilt
may be proved. The judgments of this court
have,
therefore,
emphasized
that
the
satisfaction which courts are expected to
record, i.e., that the accused may not be
guilty, is only prima facie, based on a
reasonable reading, which does not call for
meticulous examination of the materials
collected during investigation (as held in
Union of India vs. Ratan Malik19). Grant of
bail on ground of undue delay in trial, cannot
be said to be fettered by Section 37 of the Act,
given the imperative of Section 436A which is
applicable to offences under the NDPS Act
too (ref. Satender Kumar Antil supra).
Having 19 (2009) 2 SCC 624 regard to these
factors the court is of the opinion that in the
facts of this case, the appellant deserves to be
enlarged on bail."

16. In the present case, the applicant
is charged of committing an offence under
Section 8/21/25/29 N.D.P.S. Act. Section 8
of the Act prohibits any person from
possessing
any
narcotic
drug
or
psychotropic substances as well as to
produce, manufacture, sale, purchase etc.
Section
8
of
the
Act
is
quoted
hereinbelow.:-

"8.
Prohibition
of
certain
operations. -No person shall-
7 All. Wahid Ali Vs. Narcotics Control Bureau Lucknow
709

(a) cultivate any coca plant or
gather any portion of coca plant; or

(b) cultivate the opium poppy or
any cannabis plant; or

(c)
produce,
manufacture,
possess,
sell,
purchase,
transport,
warehouse, use, consume, import interState, export inter-State, import into India,
export from India or tranship any narcotic
drug or psychotropic substance, except for
medical or scientific purposes and in the
manner and to the extent provided by the
provisions of this Act or the rules or orders
made thereunder and in a case where any
such provision, imposes any requirement by
way of licence, permit or authorisation also
in
accordance
with
the
terms
and
conditions of such licence, permit or
authorisation: Provided that, and subject to
the other provisions of this Act and the
rules made thereunder, the prohibition
against the cultivation of the cannabis
plant for the production of ganja or the
production, possession, use, consumption,
purchase, sale, transport, warehousing,
import inter-State and export inter-State of
ganja for any purpose other than medical
and scientific purpose shall take effect only
from
the
date
which
the
Central
Government may, by notification in the
Official Gazette, specify in this behalf:

1[Provided further that nothing
in this section shall apply to the export of
poppy straw for decorative purposes.]"

17. In the present case, the applicant
is charged with illegal 'possession ' of the
drug and the prosecution, has to take steps
for punishing the applicant for 'possession'
and imposition of punishment prescribed
under Section 21, 25 and 29 of the Act.

18. The Act provides the manner in
which the power for determining the
causation of offence under Section 8 of
the Act is prescribed in chapter V of the
said Act. Section 42 of the said Act
confers the power on the Officers defined
therein to enter and search any building
conveyance or place and to seize the drug
or substances in the manner prescribed.
Section 42(2) of the Act further places an
embargo on the Officer concerned to
record grounds for his belief and send a
copy thereof within a time span of 72
hours to the immediate official superior.
Section 50 of N.D.P.S. Act with which we
are primarily concerned in the present
case provides as 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 subsection (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
710 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

19. On a plain reading of Section 50
mandates that at the time of search, if the
accused so desires should be taken without
any unnecessary delay to the nearest
Gazetted Officer as mentioned in Section
42 of the Act or to the nearest magistrate. It
is further empowers the Officer defined
under Section 42 to detain the person till
the time, the accused can be brought before
the Gazetted Officer or the Magistrate.
After the accused is brought before
Gazetted Officer or the Magistrate, the
powers are conferred to such Gazetted
Officer or Magistrate to further discharge
the person, if there is no reasonable ground
for search or direct the search under
Section 50. Sub Section 5 of Section 50 is
crucial for the present case which records
that if the Officer authorized under Section
42 has reasons to believe that it is not
possible to take the person to be search to
the nearest Gazetted Officer or Magistrate
and there is possibility that the person to be
search may part with the possession of any
drug or substances, an option is given to the
said Officer that instead of taking such
person to the nearest Gazetted Officer or
Magistrate, he can proceed to search as
provided under Section 100 of the Code of
Criminal Procedure. Section 50 sub section
6 of the Act further provides that the
recording of the reasons to believe under
sub section (5) have to be informed to the
immediate Official superior within 72
hours.

20. As the case against the accused is
based upon the allegation of possession of
drugs and substances, it is sine qua non that
the prosecution has to establish that the
possession was found after conducting the
search as prescribed under the Act. In the
present case as can be discerned from the
fact is that the accused-applicant was given
an option of being searched in the presence
of Gazetted Officer or Magistrate, the said
option was exercised by the applicant and
intended that he be searched in the presence
of a Gazetted Officer. In the pursuance of
the said option exercised by the accused,
the Gazetted Officer was summoned. Even
as per the counsel for the respondent, as the
search was likely to take time, the Gazetted
Officer left as the search continued for a
sufficient period of time. It is also admitted
that the Gazetted Officer, who was
summoned did not sign the search memo.
In the light of the said admission, coupled
with the fact that the charge against the
applicant is of illegal possession, it is
essential that in the trial court, the
foundation
of
a
valid
search
and
consequent discovery of possession is
established by the prosecution to carry
home the charge. The procedure adopted by
the respondents by calling the Gazetted
Officer
was
followed,
however,
the
Gazetted Officer not waiting till the
completion of the search and not signing
search memo is a clear violation of Section
50 of the Act. Although, Section 50 of the
Act in clear terms does not prescribe the
7 All. Wahid Ali Vs. Narcotics Control Bureau Lucknow
711
signature to be affixed by the Gazetted
Officer. On a plain reading of Section 50
read with Section 51 and Section 100 of
CrPC, it is an essential that any person, be
it any independent person or a Gazetted
Officer or a Magistrate before whom the
search is carried out necessarily affixes his
signature.

21.

The
foundational
fact
of
'possession' to be established by the
prosecution at the time of trial through a
valid search, prima facie is not in
consonance with the mandate of Section
50. The allegation of possession prima
facie cannot be established without any
valid search which is in accordance with
the mandate of Section 50.

22. It is essential to note that in the
light of judgment of the Hon'ble Supreme
Court it is settled that if the search is
carried out in person and also goods carried
by the accused, the ingredients of Section
50 have to be complied with as is held by
the Hon'ble Supreme Court in para 10 in
the case of State of Rajasthan vs.
Parmanand (supra) where the court also
noted the dictum of the constitutional
bench in the case of State of Punjab vs.
Baldev Singh 1999 Vol.VI SCC page 172
as under:-

"10. The conclusions drawn by
the Constitution Bench, which are relevant
for this case could be quoted.

"(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."

23. As this Court is prima facie to see
that there is a reasonable ground for
holding the person to be not guilty, at this
stage, in terms of the observation made by
the Hon'ble Supreme Court in the case of
Baldev Singh (Supra) laid clearly that the
recovery of the illicit items becomes
suspect as such reasonable grounds exists
to form a view that the applicant after trial
may not be judged guilty. All the said
observations made above are, prima facie,
observations to form an opinion which is
required to be found at the time of hearing
of the bail application and it is clarified that
the said observations would in no way
affect the trial which shall proceed in
accordance with law and after evaluation of
evidence.

24. As regards the second condition
prescribed under Section 37(1)(b)(ii) that
712 INDIAN LAW REPORTS ALLAHABAD SERIES
the accused if enlarged on bail, he is not
likely to commit any offence while on bail,
it is essential to note that the Hon'ble
Supreme Court in the case of Ranjitsingh
Brahmajeetsing Sharma (supra) had
clearly held that while forming a view with
regard to future conduct of the accused, the
court should consider keeping in view the
antecedents of the accused, his propensity
and the nature and the manner in which he
is alleged to have committed the offence. In
the present case, the accused has no
criminal antecedents and thus, I have
reasons to record satisfaction as is required
in the second part of Section 37(1)(b)(ii) of
the Act. Although, delayed trial in itself is a
ground for grant of bail in the cases under
N.D.P.S. Act, the court cannot ignore the
fact that after about two years of detention,
only one witness has been examined. This
view has been recently taken by the
Hon'ble Supreme Court in the case of
Mohd Muslim @ Hussain (supra) and the
order passed by the Hon'be Apex Court in
the Case of Rabi Prakash vs. The State of
Odisha decided in the Special Leave to
Appeal (Crl.) No(s).4169/2023. I am not
going to the other arguments raised at the
bar with regard to the violation of Circular
No.1/88,
the
factum
regarding
the
conscious possession which is to be
analyzed after the evidence. Any finding at
this stage may have affect on the outcome
of the trial and the same are also not
required in view of my findings recorded
above pertaining to the violation of
condition under Section 50 N.D.P.S. Act. In
view of the findings recorded above, the
accused- applicant is entitled to be enlarged
on bail. Thus, the bail application is
allowed.

25. Let the applicant Wahid Ali be
released
on
bail
in
aforesaid
first
information report number subject to his
furnishing a personal bond and two reliable
sureties each of the like amount to the
satisfaction of the court below concerned
with the following conditions:

(a) The applicant shall execute a
bond to undertake to attend the hearings;

(b) The applicant shall not
commit any offence similar to the offence
of which he is accused or suspected of the
commission; and

(c) The
applicant
shall
not
directly or indirectly make any inducement,
threat or promise to any person acquainted
with the facts of the case so as to dissuade
him from disclosing such facts to the Court
or to any police officer or tamper with the
evidence.
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(2023) 7 ILRA 712
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Civil Revision No. 101 of 2022

C/M Anjuman Intezamia Masajid Varanasi
 ...Revisionist
Versus
Smt.