IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 09.04.2024 Pronounced on: 06.05.2024

BAIL APPLN. 2547/2023

MAHENDER SHAH ….. Petitioner Through: Mr Aditya Aggarwal, Mr Manas Agarwal and Ms Manvi Gupta,
Advocates.

versus
STATE OF NCT OF DELHI & ANR. ….. Respondents Through: Mr Ritesh Kumar Bahri, APP for the State with SI Arun Kumar, Anti Narcotics Squad, Distt. South East.

CORAM:
HON’BLE MR. JUSTICE VIKAS MAHAJAN
JUDGMENT
VIKAS MAHAJAN, J.

1.The present petition has been filed seeking regular bail in connection with FIR No.0190/2022 under Sections 20/61/85 of the NDPS Act, 1985 (in short ‘the Act’) registered at PS Sunlight Colony.

2.Vide order dated 02.08.2023, notice was issued in the present bail application and the State was directed to file a status report. The State has filed a status report dated 02.11.2023, which forms part of the record.

3.The case of the prosecution as borne from the status report is that on 15.03.2022, secret information was received that one person Mahender Shah (the petitioner herein) would bring ganja from Ghaziabad and sell it in Delhi and on the said day, he will be coming to Sarai Kale Khan, Delhi from Ghaziabad. At the instance of the secret informer, one person who was later identified as the petitioner was apprehended by the raiding team, while he was dragging one plastic coloured bag and was going towards Ashram. Thereafter, the search of the petitioner and the plastic bag was conducted in the presence of ACP/OPS/SED Manoj Sinha and ganja weighing 27.990 kgs. was recovered from the plastic bag.

4.Learned counsel for the petitioner submits that the provisions of Section 50 of the Act are applicable in the present case, inasmuch as not only the bag of the petitioner was searched but the person of the petitioner was also searched. In support of his contention, the learned counsel has placed reliance on the decision of the Hon’ble Supreme Court in S. K. Raju vs. State of West Bengal: AIR 2018 SC 4255 and Sanjeev & Anr. vs. State of Himachal Pradesh (2022) 6 SCC 294 and he further relies upon the two
decisions of the Coordinate Bench of this Court in Sachin Arora vs. State 2023 SSC OnLine Del 4941 and Vinay vs. State 2023 SCC OnLine Del 4942.

5.It has further been argued that there is non-compliance of Section 50 of the Act, inasmuch, as the notice under the said Section does not give option to the petitioner to be searched in presence of the nearest gazetted officer, on the contrary, the notice must give an option that that petitioner/accused can be searched in the presence of any gazetted officer. In support of his contention, the learned counsel has placed reliance on the decisions of this Court in Mohd. Jabir vs. State 2023 SCC OnLine Del
1827 and Aabid Khan vs. State (Govt. of NCT of Delhi): 2023 SCC OnLine Del 7668.

6.He further submits that there is a delay of 6 days in filing an application under Section 52A of the Act, before the learned Metropolitan Magistrate for drawing of representative samples. He submits that the same is in contrast to the requirement of law to file such an application within a period of 72 hours, which gives rise to a doubt that the contraband has been tampered with. In support of his contention, reliance has been placed on the decision of Kashif vs. NCB 2023 SCC OnLine Del 2881, Sarvothaman
Guhan @ Sarvo vs. NCB 2023 SCC OnLine Del 5643 and Krishan @ Babu vs. State in BAIL APPLN. 2804/2023 vide order dated 16.11.2023.

7.He further contends that samples were sent to the FSL after a delay of 15 days. In support of his contention, the attention of the Court is invited to the Standing Order 1/88 dated 15.03.1998 wherein it has been provided that the samples must be dispatched to the laboratory within 72 hours of seizure to avoid any legal objection. He submits that a Coordinate Bench of this Court has upheld the validity of the said Standing Order in Laxman Thakur vs. State 2022 SCC OnLine Del 4427.

8. Per contra, learned APP for the State has argued on the lines of the status report. The attention of the Court is drawn to the FIR, to contend that the contraband was put back in the sack and the same was sealed with a red coloured cloth and the seal of ‘GC’ was affixed on the same. He further draws the attention of the Court to the order dated 04.04.2022 passed by the learned MM, South-East District, Saket Courts, New Delhi, under Section 52A of the Act, to contend that it is recorded in the said order that white
gunny bag, which was received in the Court was bearing the seal mark ‘GC’ and the entire process was videographed in the presence of the learned MM and the accused person had remained present during the said proceedings.

9.He further submits that the seal on the gunny bag was broken and the samples were drawn and, thereafter, the same was again resealed and the court seal i.e. ‘ss’ was affixed on the same. He has also shown the report of FSL from the police file where it has been mentioned that the seal ‘ss’ was found by the laboratory on the samples received by it. He further submits that since the seal was found intact, therefore, there is no question of tampering of the samples. According to the learned APP the delay in
sending the samples to the FSL is not fatal for the prosecution in case the court is satisfied that there is no tampering with the samples. To buttress his contention, reliance has been placed by the learned APP on the decision of the Hon’ble Supreme Court in Hardeep Singh vs. State of Punjab: (2008) 8 SCC 557, which was subsequently relied upon by the Hon’ble Supreme Court in Mohan Lal vs. State of Rajasthan: AIR 2015 SC 2098.

10.He further submits that in fact there is no delay in filing an application under Section 52A of the NDPS Act for the purpose of drawing the samples, inasmuch as the recovery of contraband is of 15.03.2022 whereas the accused was produced before the concerned court for the remand on 16.03.2022 and five (05) days PC remand was granted by the court. He submits that during the period of remand the IO was busy in conducting raids at Delhi, Ghaziabad and Kurukshetra and after the expiry of 05 days of
remand, the application was moved on 21.03.2022 under Section 52A of the Act. He submits that even otherwise no prejudice has been caused to the petitioner by the alleged delay since the seals were found to be intact.

11.He further contends that the provisions of Section 50 of the Act are not applicable in the present case, inasmuch as the recovery was from the bag and not from the person of the petitioner. He submits that the recovery was first made from the plastic bag and only thereafter the person of the petitioner was searched. According to the learned APP, the present case is squarely covered by the decision of the Hon’ble Supreme Court in Ranjan Kumar Chadha vs. State of Himachal Pradesh: AIR 2023 SCC 5164.

12.He further relies upon the decision of a Coordinate Bench of this Court in Mohd. Iqbal Ali vs. State of NCT of Delhi 2023 SCC OnLine Del 649 in support of his contention that when the recovery is from the vehicle or bag and not from the person, Section 50 of the Act is not attracted. He further contends that a perusal of notice under Section 50 reveals that an option was given to the petitioner to be searched before the gazetted officer but he refused the same. To support this contention, the attention of the Court is drawn to an endorsement recorded on the notice under Section 50 of the Act wherein it has been stated that the petitioner does not wish to get himself searched before any Gazetted Officer.

13.In rejoinder, the learned counsel for the petitioner submits that there is no proper justification in not making an application under Section 52A of the Act within the prescribed time, which renders the sample, suspect. In support of his submission, he has placed reliance on the judgment of this Court in Sarvothaman Guhan (supra)
“16. The learned counsel for the Applicant states that there is an undue delay of 10 days in filing the application under section 52-A NDPS Act as the recovery from the travel bag of the Applicant was made on 04.08.2021 and from his residence on 05.08.2021 but the application under section 52-A NDPS Act was only filed on 16.08.2021.

17.In the present case, the Respondent NCB has furnished reasons for the delay in sending the sample to FSL. As per the Respondent, the delay was caused primarily due to non-working days on account of weekends and Independence Day. The seizure report was prepared on 06.08.2021 itself, however, the reasons furnished by the Respondent NCB for the said delay are not acceptable. Assuming non-working days on account of weekend and Independence Day caused a hindrance in submitting the application under section 52-A NDPS Act, even then the NCB took more than a week to file the said application which is merely a clerical formality that should not take so much time. The delay caused is a procedural lapse on the part of the Respondent agency, which renders the sample, suspect.

18. The contraband was seized on 05.08.2021 and the seizure report was filed on 16.08.2021. Merely making bald averments that it was a weekend and Independence Day will not suffice. According to the calendar for the year of 2021, 8th and 15thof
August 2021, being two Sundays, were the only holidays, rest were working days. As valuable rights of the Applicant are at stake, the prosecution must show alacrity. NCB is a department dedicated to narcotics and once a full department is only dealing
with narcotics, it does not lie upon the Respondent – NCB to say that 10 days is a reasonable time.”

14.He submits that the decisions in Mohd. Jabir (supra) and Aabid Khan (supra), a similar endorsement of accused’s refusal to be searched before the Gazetted Officer was there but the court came to the conclusion that it is mandatory that the notice should mention that the petitioner has the right to be searched before a “nearest” Gazetted Officer instead of mentioning “any” Gazetted Officer. He further submits that it has also been laid down that the refusal of the petitioner is irrelevant.

15.I have heard the learned counsel for the petitioner and the learned APP for the State and have perused the material on record.

16.Considerable arguments have been made by both sides on the applicability of Section 50 of Act in the present case, therefore, apt would it be to first ascertain whether compliance of Section 50 of the Act is mandatory in the present case, where a composite search i.e., a search of the body of the petitioner, as well as, the plastic bag was undertaken.

17.Reference in this regard may be had to the judgement of the Supreme Court in Than Kunwar vs. State of Haryana, 1 where the Hon’ble Supreme Court after taking into account the judgment of the S.K. Raju (supra) as relied upon by the learned counsel for the petitioner has held as under:“16. As regards the contention of violation of Section 50 it is based on there being personal search of the accused. PW 6, the ASI has, inter alia, stated as follows: Personal search of accused was taken by the lady constable under the shadow of the jeep. I do not remember … I do not remember the direction of the jeep under which the personal search of the accused was taken. The lady constable has alone taken away the accused for personal search … I do not remember whether at the time of personal search driver of the jeep was in the jeep or not.

17. The learned counsel for the appellant drew our attention to the judgment of this Court in Dilip [Dilip v. State of M.P., (2007) 1 SCC 450 : (2007) 1 SCC (Cri) 377] . Therein, a Bench of two learned Judges held, inter alia, as follows : (SCC p. 456, para 16)

“16. In this case, the provisions of Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the person of the appellants was also searched, it was obligatory on the part of PW 10 to comply with the said provisions. It was not done.”

18. No doubt we notice the judgment of this Court rendered by a Bench of three learned Judges in Raju [Raju v. State of W.B., (2018) 9 SCC 708 : (2019) 1 SCC (Cri) 371] . Therein, the Court referred to the judgment in Dilip [Dilip v. State of M.P., (2007) 1 SCC 450 : (2007) 1 SCC (Cri) 377] , and thereafter, went on to, inter alia, hold as follows:
“As soon as the search of the person take place the requirement of mandatory compliance with Section 50 is attracted irrespective of whether contraband is
recovered from the person of the detainee or not.”

19. In the said Raju case [Raju v. State of W.B., (2018) 9 SCC 708 : (2019) 1 SCC (Cri) 371] , the Court went on to hold that requirement of Section 50 was complied with. However, we notice a later development in the form of a judgment rendered by a Bench of three learned Judges touching upon the correctness of the view expressed in Dilip [Dilip v. State of M.P., (2007) 1 SCC 450 : (2007) 1 SCC (Cri) 377] as contained in para 16 of the judgment.

20. In Baljinder Singh [State of Punjab v. Baljinder Singh, (2019) 10 SCC 473 : (2020) 1 SCC (Cri) 22] , this Court elaborately considered the matter with reference to the applicability of Section 50 in a case where there is a personal search also.
21. This was the case where 7 bags of poppy husk each weighing 34 kg were found from the vehicle. A personal search of the accused was undertaken after their arrest which did not lead to any recovery of contraband. The High Court [Baljinder Singh v. State of Punjab, 2019 SCC OnLine P&H 2119] found violation of Section 50 as the personal search of the accused was not conducted before the Magistrate/gazetted officer and set aside the conviction of the respondent. This Court, in Baljinder Singh [State of Punjab v. Baljinder Singh, (2019) 10 SCC 473 : (2020) 1 SCC (Cri) 22] , went on to consider the law laid down by the Constitution Bench in Baldev Singh [State of
Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080] and, inter alia, held as follows : (Baljinder Singh case [State of Punjab v. Baljinder Singh, (2019) 10 SCC 473 :
(2020) 1 SCC (Cri) 22] , SCC p. 481, paras 16-18)

“16. Conclusion (3) as recorded by the Constitution Bench in para 57 of its judgment in Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080] clearly states that the conviction may not be based “only” on the basis of possession of an illicit article recovered from personal search in violation of the requirements under Section 50 of the Act, but if there be other evidence on record, such material can certainly be looked into.

17. In the instant case, the personal search of the accused did not result in recovery of any contraband. Even if there was any such recovery, the same could not be relied upon for want of compliance with the requirements of Section 50 of the Act. But the search
of the vehicle and recovery of contraband pursuant thereto having stood proved, merely because there was non-compliance with Section 50 of the Act as far as “personal search” was concerned, no benefit can be extended so as to invalidate the effect of recovery from the search of the vehicle. Any such idea would be directly in the teeth of Conclusion (3) as aforesaid.

18. The decision of this Court in Dilip case [Dilip v. State of M.P., (2007) 1 SCC 450 : (2007) 1 SCC (Cri) 377] , however, has not adverted to the distinction as discussed hereinabove and proceeded to confer advantage upon the accused even in respect of
recovery from the vehicle, on the ground that the requirements of Section 50 relating to personal search were not complied with. In our view, the decision of this Court in the said judgment in Dilip case [Dilip v. State of M.P., (2007) 1 SCC 450 : (2007) 1 SCC (Cri) 377] is not correct and is opposed to the law laid down by this Court in Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080] and other judgments.”

22. Having regard to the judgment by the three-Judge Bench, which directly dealt with this issue viz. the correctness of the view in Dilip [Dilip v. State of M.P., (2007) 1 SCC 450 : (2007) 1 SCC (Cri) 377] reliance placed by the appellant on para 16 may not be available. As already noticed, we are not oblivious of the observation which has been made in the other three-Judge Bench judgment of this Court in Raju [Raju v. State of W.B., (2018) 9 SCC 708 : (2019) 1 SCC (Cri) 371] , which it appears, was not brought to the notice to the Bench which decided the case later in Baljinder Singh [State of Punjab v. Baljinder Singh, (2019) 10 SCC 473 : (2020) 1 SCC (Cri) 22] . We notice however that the later decision draws inspiration from the Constitution Bench decision in Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080] . We also notice that this is not a case where anything was recovered on the alleged personal search. The recovery was effected from the bag for which it is settled law that compliance with Section 50 of the Act is not required. (emphasis supplied)

18.In Than Kunwar (supra), the Hon’ble Supreme Court relied upon its earlier three Judge Bench decision in State of Punjab vs. Baljinder Singh, (2019) 10 SCC 473, which in turn had drawn inspiration from the Constitution Bench decision in the State of Punjab vs. Baldev Singh, (1999) 6 SCC 172, to conclude that when in a composite search i.e. search of the body of the accused, as well as, the bag carried by him nothing is recovered from the personal search of the accused, the provisions of Section 50 of the
Act will have no application. In this view of the matter, the contention of the learned counsel for the petitioner that the provisions of Section 50 of the Act are applicable in the present case is rejected.

19.Likewise, the contention of the learned counsel of the petitioner that the notice served upon the petitioner under Section 50 of the Act was defective loses its relevance and cannot be accepted as it has already been held above that the provisions of Section 50 of the Act are not applicable in the factual matrix of the present case. Further, in this regard, reference may be had to a decision of the Coordinate Bench of this Court in Irfan Saifi vs. State (NCT of Delhi): 2023 SCC OnLine Del 7624 where a similar contention was rejected holding as under:

“33. Now, adverting to the facts involved in the present proceedings, this is a case wherein, admittedly, nothing was recovered upon the alleged personal search and the recovery was effected from the polythene found hanging to the hook on the left side of the motorcycle of the applicant. Thus, in view of the settled law as discussed hereinabove, it is clear that compliance with the provisions of Section 50 of the NDPS Act being not required is not called for. Consequently, being mindful of the aforesaid
situation on hand in the present proceedings, the issue qua the impropriety and ambiguity of the Notice under Section 50 of the NDPS Act served upon the applicant herein, does not require adjudication, especially as the said Notice under Section 50 of the NDPS Act was not required to be served upon the applicant. In any case, at this stage, when this Court is dealing with grant of bail to the applicant, and the issue being a matter of trial, this Court need not deliberate upon the law laid down in Vijaysinh Chandubha Jadeja (supra) and Mohd. Jabir (supra) as reliance placed thereon by the learned counsel for the applicant is misplaced.

34. Further, by calling upon the Court to adjudicate the issue qua the impropriety and ambiguity of the Notice under Section 50 of the NDPS Act, the applicant is calling upon this Court to prejudge something prior to the trial thereon, without giving a fair chance to the prosecution to establish its case, as this Court cannot be privy to “Putting The Horse Before The Cart”. The same is against the very tenets of law qua granting bail. Reliance in this regard is placed upon the judgment dated 23.11.2021 passed by a Co-ordinate Bench of this Court in BAIL APPLN. 3248/2021 titled Naveed Ummer Sheikh v. Narcotic Control Bureau, wherein it was held as under:—

“11. … The entire procedural defect in this regard would be tested when the evidence is led in this case and this is not the stage where any opinion can be given in favour
or against the manner in drawing the samples. The recovered quantity is a commercial quantity hence bar of section 37 applies. In these circumstances, no ground for
bail is made out.” (emphasis supplied)

20.Likewise, the contention of the learned counsel for the petitioner that a delay of 06 days in filing an application under Section 52A of the Act lead to an inference that the contraband has been tempered with by the officials of the respondent cannot be accepted at this stage, especially when the delay of 06 days has been adequately explained by the prosecution. It is not in dispute that the arrest of petitioner and recovery of contraband is on 15.03.2022 and he was produced before the concerned Court on 16.03.2022 when five days remand was granted by the Court. During those five days the IO was occupied in continuing raids in Delhi, Ghaziabad and Kurukshetra,
therefore, the application under Section 52A of the Act was moved after the expiry of Court period on 21.03.2022. Further, this Court in Mohit Yadav vs. State of NCT, Delhi 2024 SCC OnLine Del 2910 after adverting to the law on Section 52A of the Act has held that any defect in the sampling procedure should be egregious and should prima facie cause irreparable prejudice to the accused.

21.Similar view has been taken by a Coordinate Bench of this Court in Somdutt Singh @ Shivam vs. Narcotics Control Bureau: 2023 SCC OnLine Del 7580 decided on 01.12.2023 the Court held as under:

“17. It is clear from a reading of the aforesaid judgments that there is no mandatory time duration prescribed for compliance of Section 52-A of the NDPS Act. Though it is desirable that the procedure contemplated in Section 52-A of the NDPS Act be
complied with at the earliest, mere delayed compliance of the same cannot be a ground for grant of bail. The applicant will have to show the prejudice caused on account of delayed compliance of Section 52-A of the NDPS Act.

18. In the present case, the sampling of the seized psychotropic substances was carried out in the presence of the Magistrate and the accused persons and the samples were directed to be sent for testing. The applicant has failed to show the prejudice caused to
him on account of the delayed compliance of Section 52-A of the NDPS Act.

19. At this stage, it is apposite to refer to the judgments relied on by the counsel for the applicant. In Kashif (supra) and Tamir Ali (supra) no recovery was effected from the possession or at the instance of the applicants therein. Further, in Sarvothaman Guhan (supra), the recovery from the applicant was not of a commercial quantity. Therefore, reliance placed on the aforesaid judgments is misplaced as the rigours of Section 37
of the NDPS Act were not applicable therein.” (emphasis supplied)

22.In the present case, the learned APP has referred to the FIR, the order of the learned Metropolitan Magistrate, as well as, the report of FSL to show that the seals which were placed by the officers of the respondent, as well as, the ld. Metropolitan Magistrate were intact. This fact prima facie manifests that the contraband, as well as, the representative sample was not tampered with. Taking the aforesaid into account, it cannot be said that irreparable prejudice has been caused to the accused.

23. As noted above, the petitioner was apprehended with ganja weighing 27.990 kgs. being commercial quantity, therefore, the bar under Section 37 of the NDPS Act is applicable. However, in view of the aforesaid discussion, at this stage it cannot be said that there are reasonable grounds for believing that the petitioner is not guilty of the offence alleged. Accordingly, the present petition, along with pending applications, if any, is dismissed.

24. Order be uploaded on the website of this Court.

VIKAS MAHAJAN, J. MAY 06, 2024 MK Signature Not Verified Digitally Signed By:NARENDRA SINGH ASWAL Signing Date:08.05.2024 15:25:15 BAIL APPLN.2547/2023