Case Note & Summary
The applicant, Junedali S/o Vaqarali @ Vikaraali Imadadali Saiyad, filed a successive regular bail application under Section 439 of the Code of Criminal Procedure, 1973, in connection with FIR No. 112/2025 registered with the DCB Police Station, Ahmedabad, for offences under Sections 8(c), 21, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The applicant was arrested on 15.03.2025 and had been in judicial custody since then. The earlier bail application (Criminal Misc. Application No.8432/2025) was withdrawn on 01.07.2025. The present application was filed after the chargesheet was filed. The prosecution alleged that the applicant was found in possession of 5 kg of charas, a commercial quantity, and that he was part of a conspiracy. The applicant contended that he was a mere passenger and had no knowledge of the contraband, and that the mandatory provisions of Section 50 of the NDPS Act were not complied with. The court analyzed the evidence and found that the search of the bag carried by the applicant amounted to a personal search, and the prosecution failed to inform the applicant of his right to be searched before a Magistrate or Gazetted Officer. The court also held that conscious possession was not established as there was no evidence to show that the applicant knew about the contraband. The court granted bail to the applicant on certain conditions, including furnishing a bond of Rs. 50,000 and reporting to the police station once a month.
Headnote
A) Criminal Procedure Code - Successive Bail Application - Section 439 CrPC - Change of Circumstances - The applicant filed a successive bail application after withdrawal of earlier application, which was allowed as there was a change in circumstances including filing of chargesheet and non-compliance with mandatory provisions of Section 50 of NDPS Act. Held that successive bail application is maintainable if there is a change in circumstances (Paras 1-5). B) Narcotic Drugs and Psychotropic Substances Act - Search and Seizure - Section 50 NDPS Act - Right to be Informed - The prosecution failed to comply with Section 50 of NDPS Act as the accused was not informed of his right to be searched before a Magistrate or Gazetted Officer. The recovery of contraband from a bag carried by the accused does not amount to personal search, but the court found that the bag was in exclusive possession of the accused and thus Section 50 was applicable. Held that non-compliance with Section 50 vitiates the recovery (Paras 6-10). C) Narcotic Drugs and Psychotropic Substances Act - Conscious Possession - Mens Rea - Section 8(c) read with Sections 21 and 29 NDPS Act - The court held that for conviction under the NDPS Act, conscious possession of contraband must be established. In the present case, the accused was a mere passenger and there was no evidence to show that he had knowledge of the contraband in the bag. Held that in the absence of conscious possession, bail should be granted (Paras 11-15). D) Narcotic Drugs and Psychotropic Substances Act - Quantity of Contraband - Commercial Quantity - Section 2(xxiii) NDPS Act - The contraband recovered was 5 kg of charas, which is a commercial quantity. However, the court noted that the quantity alone is not determinative and the court must consider other factors such as compliance with procedural safeguards. Held that despite commercial quantity, bail can be granted if there are mitigating circumstances (Paras 16-20).
Issue of Consideration
Whether the applicant is entitled to regular bail in connection with FIR for offences under the NDPS Act, 1985, particularly in light of non-compliance with Section 50 and lack of conscious possession.
Final Decision
The court allowed the application and granted regular bail to the applicant on his furnishing a personal bond of Rs. 50,000 with one surety of the like amount, subject to conditions including not tampering with evidence, not inducing witnesses, and reporting to the police station once a month.
Law Points
- Section 50 of NDPS Act requires informing accused of right to be searched before a Magistrate or Gazetted Officer
- conscious possession is essential for conviction under NDPS Act
- bail is rule and jail is exception
- successive bail application can be considered on change of circumstances
