Merely informing accused that he had rights under NDPS Act, without specifying what rights he had, would not constitute compliance with mandatory requirement under Sec.50(1): P&H HC

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Read Order: Sunil Vs. State of Haryana

LE Staff

Chandigarh, November 5, 2021 : The Punjab and Haryana High Court has observed that merely informing the petitioner that he had rights under the NDPS Act, without specifying what rights the petitioner had under the NDPS Act, would not constitute compliance with the mandatory requirement under Section 50, sub-section (1) of NDPS Act.

The Bench of Justice B.S.Walia allowed the Petition for regular bail in a case pertaining to the FIR registered under Sections 21 and 25, NDPS Act, 1985 at Police Station Kundli, District Sonipat.

From the petitioner’s side, it was mainly argued that although the alleged recovery from the petitioner, co accused Mukdar, Arvind, Vikas all of whom were travelling in a car, was of 523, 394, 20, and 803 grams respectively of powder alleged to be heroin, i.e. commercial quantity, since the petitioner was not informed of his right to be searched in the presence of a Gazetted Officer or a Magistrate if he so desired, therefore, there was non-compliance with Section 50 NDPS Act, consequentially, the bar under Section 37 NDPS Act would not apply and resultantly the petitioner was entitled to grant of bail during the pendency of the trial.

The Bench noted that no doubt, notice under Section 50 of the NDPS Act mentioned the petitioner having been apprised of his rights but the said notice was absolutely silent as to what rights were apprised to the petitioner as also whether he was apprised of his right under Section 50 NDPS Act, to be searched in the presence of a Magistrate or a Gazetted Officer.

The said notice merely mentioned the petitioner having been informed of his rights as also the option if he so desired to get his search conducted by a Magistrate or Gazetted officer. 

To the Judge’s  mind, merely informing the petitioner that he had rights under the NDPS Act, without specifying what rights the petitioner had under the NDPS Act, would not constitute compliance with the mandatory requirement under Section 50 sub-Section (1)  of NDPS Act. 

The mandatory requirement under Section 50(1) of NDPS Act not having been complied with and the punishment provided for an offence under the NDPS Act being very stringent, failure to comply with Section 50 of NDPS Act renders the recovery of the illicit article suspect. 

It was also not the stand of the prosecution that the petitioner is a person with criminal antecedents or that he is involved in similar offences earlier. Since, the requirement under Section 50 NDPS Act was not merely a technical breach, and the petitioner was not involved in any other case under the NDPS, therefore, in the circumstances, for the limited purposes of the instant petition, this Court was satisfied that there were reasonable grounds to believe that the petitioner was not guilty of such offence and that he was not likely to commit any such offence while on bail.

Thus, the High Court ordered the petitioner-Sunil, to be released on regular bail during the pendency of the trial on his furnishing bail bond and surety bond to the satisfaction of the trial Court / Chief Judicial Magistrate / Duty Magistrate concerned, provided he was not required in any other case.

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