Case Note & Summary
The petitioner, Joswin Lobo, filed a criminal petition under Section 439 of the Code of Criminal Procedure, 1973, seeking regular bail in Crime No.224/2021 registered by Byadarahalli Police Station, Bengaluru, for offences punishable under Sections 8(c), 20(ii)(b), 21(c), 22(c), 23(c), and 27(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The factual matrix of the case is that on 22.06.2021, based on credible information, the police apprehended five persons in a room who were allegedly trafficking narcotic drugs including Ecstasy pills, LSD strips, and ganja to college students and ITBT employees. The search and seizure were conducted between 3.00 p.m. and 7.00 p.m., and the panchanama was drawn. The petitioner was arrested and remanded to judicial custody. The learned counsel for the petitioner vehemently contended that the search and seizure were not conducted in compliance with Section 50 of the NDPS Act, as the petitioner was not informed of his right to be searched before a Gazetted Officer or Magistrate. The court examined the panchanama and found that there was no mention that the accused was informed of his right under Section 50. The court held that the mandatory requirement of Section 50 was not complied with, and therefore, the seizure was vitiated. The court further noted that the quantity of drugs recovered was commercial, attracting the twin conditions under Section 37 of the NDPS Act. However, since the prosecution failed to establish a prima facie case due to non-compliance of Section 50, the conditions were not applicable. Consequently, the court allowed the bail petition and directed the petitioner to be released on bail subject to certain conditions.
Headnote
A) Criminal Procedure Code, 1973 - Section 439 - Bail - NDPS Act - Non-compliance of Section 50 - The court considered the bail application of an accused arrested under the NDPS Act for possession of commercial quantity of drugs. The court held that the mandatory requirement of informing the accused of his right to be searched before a Gazetted Officer or Magistrate under Section 50 was not complied with, as the panchanama did not record such information. Consequently, the seizure was vitiated, and the accused was entitled to bail. (Paras 5-8) B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Right of accused to be searched before Gazetted Officer or Magistrate - The court examined the panchanama and found no mention that the accused was informed of his right under Section 50. The court relied on the principle that non-compliance with Section 50 renders the search and seizure illegal, and the accused is entitled to bail. (Paras 5-8) C) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 37 - Twin conditions for bail - Commercial quantity - The court noted that the quantity of drugs recovered was commercial, attracting the twin conditions under Section 37. However, since the prosecution failed to establish a prima facie case due to non-compliance of Section 50, the conditions were not applicable. (Paras 5-8)
Issue of Consideration
Whether the petitioner is entitled to regular bail under Section 439 Cr.P.C. for offences under the NDPS Act, considering the alleged non-compliance of Section 50 of the NDPS Act and the quantity of drugs recovered.
Final Decision
The court allowed the bail petition and directed the petitioner to be released on bail subject to conditions.
Law Points
- Bail
- Narcotic Drugs and Psychotropic Substances Act
- 1985
- Section 50
- Right to be searched before a Gazetted Officer or Magistrate
- Compliance mandatory
- Commercial quantity
- Twin conditions under Section 37
- Prima facie case
