In BAIL APPLN. 603/2022-DEL HC- If accused voluntarily waives his right to be searched and chooses not to exercise his right u/s 50 of NDPS Act, then it cannot be said that there has been non-compliance of such provision: Delhi HC 
Justice Anu Malhotra [27-09-2022]

Read Order: FANTOOSH YADAV v. STATE (GOVT. OF NCT OF DELHI) 

Mansimran Kaur

New Delhi, September 28, 2022: The Delhi High Court has refused to grant bail to an accused booked under the NDPS Act after he was found in an alleged possession of a commercial quantity of Codeine in the form of Codeine Phosphate as phensedyl syrup in bottles as he was allegedly driving the truck in which the contraband was found concealed beneath certain electronic articles.

Justice Anu Malhotra rejected the instant application preferred by the applicant, seeking the grant of regular bail in relation to the FIR register = under Sections 21/25/29 of the NDPS Act, 1985 as there was no ground to believe that the applicant was  not guilty of the commission of any offence punishable under the NDPS Act or that he was  unlikely to commit any such offence during trial.

In this NDPS matter, the applicant seeking the grant of regular bail, submitted that he was merely a driver of a transporter / facilitator named Rakesh Sharma who was running a small transport business of providing trucks/lorries on rental basis. The applicant further submitted that he had rendered all his cooperation for completion of the investigation

It was the applicant’s case that the public witnesses did not support the prosecution version and the trial would take time which would cause prejudice to the rights of the applicant. 

It was further submitted that the provisions of Section 50 of the NDPS Act, 1985 were not  complied with, in as much as, the presence of any Magistrate or Gazetted officer at the time of search of an accused was  necessary to ensure authenticity, transparency and creditworthiness of the entire proceedings.

After considering the rival contentions of the parties, the Court noted that the said accused was not himself found in possession of the contraband of Phensedyl Syrup, which was allegedly found concealed beneath the electronic articles seized in the truck.  It was further noted by the Court that the facts alleged against the present applicant were not in pari materia with the facts alleged against the co-accused persons named Rakesh Sharma and Kailash Gupta. 

As per the Bench, there was  nothing in the instant case to show that the Codeine Phosphate was required for any therapeutic purpose.  

As regards the contention raised on behalf of the applicant qua the non-compliance of the provisions of Section 50 of the NDPS Act, 1985 submitting to the effect that there was no Gazetted officer or any Magistrate at the time of the search of the applicant, the Court essentially  observed  that the allegations levelled against the applicant were  to the effect that though, the search of the applicant in the presence of a Gazetted officer or a Magistrate was offered, the applicant declined to avail of the same. 

“Thus,  in as much as, the applicant in the instant case was  alleged to have waived his right to be searched voluntarily and had chosen not to exercise his right provided to him in terms of Section 50 of the NDPS Act, 1985, it cannot be contended by the applicant that there has been a non-compliance of Section 50 of the NDPS Act, 1985”, the Court observed. 

 The aspect of compliance or otherwise of Section 42 of the NDPS Act, 1985 and the weight to be given to the testimonies of witnesses examined is a matter of Trial, the Court further remarked.  

In such circumstances, the applicant having been found in an alleged possession of a commercial quantity of Codeine in the form of Codeine Phosphate as phensedyl syrup in bottles allegedly and consciously as he was allegedly driving the truck in which the contraband was found concealed beneath electronic articles, the Bench opined that the embargo under Section 37 wholly applied to the facts of the instant case.

Finding no ground to  believe that the applicant was not guilty of the commission of any offence punishable or that he wass unlikely to commit any such offence during trial under the NDPS Act, 1985, the Court dismissed the bail application.