Punjab and Haryana High Court: B.S. Walia, J., held that merely informing that accused has rights under the NDPS Act, without specifying what rights he has will not constitute compliance with the mandatory requirement under Section 50 sub- Section (1) NDPS Act.
The sole argument of the petitioner was that although the alleged recovery from him was of 523 grams of heroin powder and from his co-accused was of 394, 20, and 803 grams respectively, 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, resultantly the petitioner was entitled to grant of bail during the pendency of the trial.
On the contrary, the State had referred to the notice u/S 50 NDPS Act to contend that the petitioner was informed, of apprehension of the police that he had some intoxicating material/heroin with him, his rights, besides option to get his search conducted by a Magistrate or Gazetted Officer for which the said Officer could be called on the spot, therefore in the circumstances, there was due compliance with the mandate of Section 50 NDPS Act.
In State of Delhi v. Ram Avtar, (2011) 12 SCC 207, the Supreme Court had observed that, “……while discharging the onus of Section 50 of the Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of Section 50 of the Act. Non-compliance of the provisions of Section 50 of the Act would cause prejudice to the accused, and, therefore, amount to the denial of a fair trial.”
Noticeably, though the notice under Section 50 of the NDPS Act was sent to the petitioner apprising him 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.
Observing that the impugned 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, the Bench stated,
“To my 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) NDPS Act.”
Hence, noticing that the mandatory requirement under Section 50(1) NDPS Act not having been complied with and the punishment provided for an offence under the NDPS Act being very stringent, the Bench held that failure to comply with Section 50 NDPS Act had rendered the recovery of the illicit article suspect. The Bench stated,
“Since, the requirement under Section 50 NDPS Act is not merely a technical breach, and the petitioner is not involved in any other case under the NDPS, therefore, in the circumstances…it can safely be recorded that this Court is satisfied that there are reasonable grounds to believe that the petitioner is not guilty of such offence and that he is not likely to commit any such offence while on bail.”
Considering that the petitioner had been in custody since 21-01-2021, and the investigation was complete, and a Challan had been presented, the Bench directed to release the petitioner on regular bail on his furnishing bail bond and surety bond to the satisfaction of the Trial Court. [Sunil v. State of Haryana, CRM-M No.28067 of 2021, decided on 02-11-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
For the Petitioner: Preetinder Singh Ahluwalia, Advocate and Shaurya Puri,
For the State: Gurbir Singh Dhillon, AAG Haryana (Argued by Mr. Naveen Kumar Sheoran, DAG, Haryana)