1. Heard.

2. The applicant came to be arrested in connection with Crime No.262/2025 registered with Kotwali Police Station, Amravati City for the offences punishable under Sections 8[c], 21[c] and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS).

3. The first information report came to be lodged by Mahesh Ingole, Police Official posted at Crime Branch, Amravati, alleging that on 20.07.2025 while on patrolling duty, they received secret information that the applicant is carrying contraband in an auto rickshaw along with his friend. He therefore, sent a constable to the police station for completing necessary formalities, and after completing the same, raid was conducted. The auto-rickshaw was stopped and search was conducted. In said search a plastic packet containing white powder was found in the pocket of pant of the applicant and an electronic pocket weight machine was found in the pocket of his friend. The said powder was M.D. Mathedon weighing 107.79 mg., which was approximately costing Rs.5,38,950/-. Hence, the first information report.

The learned Counsel appearing for the applicant has raised two grounds in support of his prayer for grant of bail. He submits that there is non-compliance of Section 50 of the NDPS Act, and secondly, the charge sheet was filed without any Chemical Analysis report. He submits that in the intimation or notice given to the applicant, the word “Magistrate” has not been mentioned, and therefore, there is non-compliance of Section 50 of the NDPS Act. Even otherwise, the concerned officer cannot give third option, however in the said notice, third option was given that search can be conducted either by the police person, who is giving notice, or any other higher rank official, who was present on the spot at the relevant time. It is submitted that giving third option is not permissible, and that compliance of Section 50 is mandatory, and violation of the same would entail the applicant to ask for bail. He further submitted that the charge sheet is filed in a hasty manner without any Chemical Analysis report, and so as to deprive the applicant from seeking default bail. Chemical analysis report is an important piece of evidence to come to the conclusion that the seized contraband falls within the provisions of the NDPS Act. Unless and until it is ascertained whether the seized material is Narcotic or Psychotropic substance, till then it is very difficult to conclude, that the applicant has committed the alleged offence. Thus, in absence of chemical analysis report, the charge sheet ought not to have been filed by the investigating officer. In support of his submissions he has relied on the judgments of Supreme Court in case of Mohd. Arbaz and others .vrs. State of NCT of Delhi – Special Leave to Appeal (Cri) No.8164-8166/2021 dated 18.07.2024 and The State of Himachal Pradesh .vrs. Surat Singh – Criminal Appeal No.96/2018 decided on 16.03.2026. He has also relied on the judgment of this Court (Panji Bench) in case of Mr. Joseph Achola Ouma .vrs. State of Goa and another – 2026 All MR (Cri) 1260. He submits that on both the counts the applicant deserves to be granted bail.

4. On the other hand, the learned A.P.P. appearing on behalf of the State vehemently opposed the application by submitting that MD Drug of commercial quantity i.e. 107.79 grams was found in possession of the applicant. A notice was issued under Section 50 of the NDPS Act and accordingly personal search was taken. My attention is invited to notice dated 20.07.2025, served on the accused persons by the police inspector of LCD Unit No.2, Amravati City. It is submitted that the wording used in the said notice cannot be regarded as insufficient compliance of Section 50 of the NDPS Act. No prejudice is caused to the applicant, even if it is used in partial compliance of Section 50 of the NDPS Act. The wording used in the said notice is that though he is a gazetted officer, however, if he wishes his search can also be taken by any other higher gazetted officer from some other department. It is further submitted that the applicant declined search by any other officer and this has been stated by him in writing on the notice itself.

5. The learned A.P.P. has relied on the judgment of Supreme Court in case of Narcotics Control Bureau .vrs. Kashif – Criminal Appeal No.5544/2024 decided on 20.12.2024, wherein according to him the Supreme Court has held that any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation inadmissible. He further submits that the Supreme Court has held that even if there is non-compliance of any procedural irregularity, unless it results in serious prejudice to the accused persons, it cannot be said that there is no compliance of Section 50 of the NDPS Act.

6. So far as the other ground raised by the applicant is concerned, the learned A.P.P. on instructions stated that the chemical analysis report was not accompanied with the charge sheet for the reason, that the same was awaited from the laboratory. He submits that, considering the serious nature of allegations and the fact that commercial quantity of M.D. drug was found in possession of the applicant, the rigours of Section 37 of the NDPS Act would be applicable, and therefore, the prayer made by the applicant to release him on bail needs to be rejected.

7. I have considered the rival submissions canvassed by the learned Counsel for the parties and with their assistance gone through the material placed on record. Section 50 has been incorporated in the NDPS Act as procedural mandatory provision. The object and intent of the Legislature is that for search of a person by empowered officer by taking him to the Magistrate or a Gazetted Officer, if there is reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, the officer shall record such reason and after search is conducted, the officer shall record the reasons for such belief which necessitated such search and send a copy thereof to his immediate official superior. Therefore, the object of incorporating this Section is very clear. It is expected from the officer who wants to search a person who is having a contraband, and if there is no possibility that the said person, can be taken to the nearest Gazetted Officer or to the nearest Magistrate, he should record reasons for that, and so also he should mention that it is not possible to take the person to the nearest Gazetted Officer or Magistrate. Thus, it is crystal clear that it is mandatory for the officer who has apprehended the accused and wants to take his search, either he should take said person to the nearest Magistrate or to nearest Gazetted Officer.

8. In the present case, a notice was issued by the police inspector, who himself appears to be a gazetted officer and the recitals of the notice are as under :

                  

From the above it is clear that the police official introduces himself as a gazetted officer and he further states that under NDPS Act, search can be taken before gazetted officer, and if the accused wants search before any other higher official who is a gazetted officer of any other department, he may intimate the same to the police inspector.

9. Infact this notice cannot be said to be a mandatory compliance of Section 50, for the reason that in view of the decision of this Court in case of Joseph Achola Ouma [supra], relied upon by the applicant, wherein in paragraph no.33 it has been observed as under :

                    “33. Thus from the analysis of the judgments referred hereinabove it is abundantly clear that the prosecution has utterly failed to follow the mandate of section 50 of the NDPS Act. It is amply clear that the applicant was given only one option to be searched in presence of a Gazetted Officer. The option to be searched in presence of Magistrate was not given to the accused-appellant. The obligation of the authorized officer under sub-section [1] of Section 50 of the NDPS Act is mandatory and requires strict compliance.”

In this case, this Court while referring to several judgments, referred to one judgment wherein importance of search before the Magistrate has been demonstrated, i.e.Hamidkhan Hussain Khan .vrs. State of Maharashtra – 1996[3] All MR 297, wherein it was held that “therefore, it is very difficult to agree that expression ‘other officer’ includes ‘Magistrate’. In a Criminal Law, the word, ‘Magistrate’ assumes special significance. We therefore, find that there is no strict compliance of Section 50 of the Act.”

10. From perusal of the notice dated 20.07.2025 it is crystal clear that in the said notice the concerned officer has not taken any pains to inform the applicant that he could be searched before the Magistrate. As observed above that the word ‘Magistrate’ is not included in ‘any other Officer’. It is further to be noted that when the Legislature has incorporated the word ‘Magistrate’ in Section 50, then it has to be complied strictly, and there cannot be any deviation from the same. Further there is no third option left to the concerned officer to be given to the person who is to be searched. It is also observed by the Supreme Court in its decision in case of Surat Singh [supra], more specifically paragraph no.19 that - “In the instant case the accused was to be apprised of his legal right to be searched either before the Gazetted Officer or before the Magistrate and not before the Police Officer.” In this way the Supreme Court has held that the concerned officer cannot give third option for search to be conducted of the accused person. Thus, the Supreme Court while interpreting Section 50 has in unequivocal terms held in aforesaid manner, and therefore, Section 50 needs to be complied strictly and the word ‘Magistrate’ cannot be substituted by any other officer. Therefore, in the present case, in my opinion there is no strict compliance of Section 50 of the NDPS Act, and when there is no compliance of said section, there is no question of no prejudice caused, since it is a legal right provided by the statute in order to protect the accused persons from being harassed or being implicated in false case. The concerned officer cannot act or create any third procedure and act as per his whims and fancies. The officer is required to strictly adhere to the law.

11. This Court has come across several cases where there is no compliance of mandatory provisions either under the NDPS Act or any other enactment, which provides or prescribes for mandatory procedural compliance.

12. Coming to the case at hand, so far as the ground which was raised by the applicant that charge sheet was not accompanied with chemical analysis report, is concerned, the same issue is the subject matter before the Supreme Court in case of Mohd. Arbaz and others [supra], and considering the same it has been observed that - “In this batch of cases, the primary issue that arises for consideration is as to whether a charge-sheet without the FSL/Examiner’s Report in a NDPS case can be termed as an incomplete Report’ under Section 173 Cr.P.C.?” In view thereof, the Supreme Court in paragraph no.8 continued the interim order granting bail to the petitioners therein, until further orders.

13. Admittedly in the present case, the applicant has not been served with the chemical analysis report, though he has been served with the charge sheet. The learned A.P.P. on instructions has stated that since the said report is awaited from the laboratory, the same could not be filed or annexed to the charge sheet. In such circumstances, it can be said that the charge sheet was filed without chemical analysis report, therefore, whether the contraband which was seized by the investigating officer can be said to be M.D. drug, is the question and again a question would arise as to how the investigating officer has come to the conclusion that the seized contraband is M.D. drug. In absence of the chemical analysis report, the investigating officer ought not to have filed the charge sheet and could have waited for receipt of the report.

14. So far as the rigours of Section 37 of the NDPS Act is concerned, in such circumstances it can be said that in absence of the chemical analysis report, there is a reasonable ground to believe that the applicant is not guilty of the charged offence, and further as there are no criminal antecedents or against him, there is least possibility that he is likely to commit any offence while on bail. The conditions laid down in Section 37 are duly satisfied.

In view of above, considering both the grounds raised by the applicant, I am of the considered opinion that the applicant deserves to be released on bail by imposing stringent conditions. Hence, the following order.

ORDER

(i) Criminal Application is allowed and disposed of.

(ii) The applicant /accused Atik Beg Anees beg be released on regular bail in connection with Crime No.262/2025 registered with Kotwali Police Station, Amravati City for the offences punishable under Sections 8[c], 21[c] and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS), on his furnishing P.R. Bond of Rs.1,00,000/-, with two sureties in the like amount.

(iii) The accused shall not enter within the territorial jurisdiction of the spot of incident, till the completion of the trial.

(iv) The accused shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case, as also shall not tamper with the evidence.

(v) The accused shall provide his residential address and cell number to Police Station concerned and shall not change the place of residence without prior intimation to the Investigating Agency.

(vi) The accused shall attend each and every date of trial regularly. If he fails to attend the trial on one date, or fails to comply with the aforesaid conditions, his default would entail the State to ask for cancellation of bail.

(vii) The above observations are prima facie in nature, and restricted for the purpose of deciding this application. The Trial Court shall not get itself influenced by said observations, during the course of trial.

(viii) Misc. Applications, if any, are also disposed of.