(Prayer: Criminal Original Petition filed under Section 483 of BNSS, praying to enlarge the petitioner on bail pending trial in C.C.No.75 of 2024 on the file of the II Additional Special Judge NDPS Act Cases, at Chennai.)
1. The petitioner, who was arrested and remanded to judicial custody on 10.07.2023 for the alleged offence under Section 8(c), 20(b)(ii)(C), 29(1) of NDPS Act in Crime No.272 of 2023 on the file of the respondent police, seeks bail.
2. The learned counsel for the petitioner would submit that though there are about four accused, the respondent has effected recovery only against this petitioner. According to the prosecution, the contraband is 30 kgs of ganja, and that the recovery from the petitioner in two bags. He would further submit that when there are four accused, it is illogical that all the two bags were carried by this petitioner. He would further submit that the very conduct of the respondent in giving Section 50 of NDPS Act notice jointly to all the accused has seriously jeoparadized the petitioner’s right to be searched in the presence of the Gazetted Officer or a Magistrate. Further, while sending the samples, the guidelines under Section 52A of NDPS Act has not been followed. It is also his contention that translated version of Section 50 notice was not furnished, as the petitioner does not know Tamil. It is also his further submission that since some of the other accused are absconding, there is no progress in trial. Since he has been incarcerated from 10.07.2023, he prayed to grant bail to the petitioner. In support of his contention, the learned counsel would rely upon the judgment of the Hon’ble Supreme Court in State of Rajasthan Vs. Parmanand & Another reported in (2014) 5 SCC 345.
3. Per contra, the said contention was stoutly objected by the learned Government Advocate (Crl.Side) and would contend that there is no fault on the part of the prosecution in proceeding with the trial, and in this case, so far 7 witnesses have been examined. Only because of issuance of Nonbailable Warrant against the accused 2 to 4, the trial could not be proceeded with. He would further submit that the defence put forth by the learned counsel for the petitioner in respect of Sections 50 & 52 of NDPS Act, cannot be adjudicated at the stage of bail. Hence, prayed to dismiss the present petition.
4. I have given my anxious consideration to either side submissions.
5. The main contention put forth by the learned counsel for the petitioner is in respect of issuance of Section 50 joint notice. By referring to Parmanand’s case [cited supra], learned counsel for the petitioner would submit that the joint communication in respect of the right available under Section 50(1) of NDPS Act defeats the very purpose of Section 50 and thereby, the entire trial will be vitiated. In this regard, it is relevant to refer paragraph 24 of the Constitutional Bench judgment in Vijaysinh Chandubha Jadeja Vs. State of Gujarat, reported in (2011) 1 SCC 609.
“24. Although the Constitution Bench in Baldev Singh case [(1999) 6 SCC 172 : 1999 SCC (Cri) 1080] did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to “inform” the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to “inform” the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce.”
According to the above ratio, even oral notice is sufficient. The judgment relied by the petitioner has not considered this Constitution Bench Judgement. This Court bound by larger Bench judgment, if two conflicting view available. But, in the case in hand, there is a constitution Bench judgment stands against the petitioner.
6. In a recent judgment in Mehboob Shah Vs Sate of Madhya Pradesh reported in 2026 INSC 729, the Hon’ble Supreme Court has held that Section 50 notice is essential only if any search made upon the body of the person and not upon the thing such as as bag, water bottle carried by the petitioner in a bag. Therefore, even otherwise as per the judgment of the Hon’ble Supreme Court in Mehboob Shah’s case, Section 50 of NDPS Act notice appears to be not mandatory. But, this aspect could only be effectively adjudicated at Trial.
7. From the above narration of judgments, it is amply clear that the format or the joint information is not the matter. What is essential is that, to made the accused aware about the right under Section 50 of NDPS Act. In the present case, by way of documents submitted by the petitioner, the petitioner was made aware about his right under Section 50 of NDPS Act. Therefore, by virtue of the Constitutional Bench judgment, this Court could not find any infirmity so as to vitiate the trial. If at all the petitioner has got any grievance, still he has got his right before the Trial Court to establish the same.
8. Coming to the other aspect of impossibility of carrying 30 Kg of Ganja by this petitioner alone, when there are four person, again as rightly contended by the learned Government Advocate (Crl.Side), it is matter for trial.
9. Coming to the yet another contention in respect of non compliance of Section 52A qua not following the guidelines while sending the samples, as per the recent judgment of the Hon’ble Supreme Court in Narcotics Control Bureau Vs. Kashif reported in 2024 INSC 1045, it may only be a procedural irregularity and that if there any deviation, it will not vitiate the entire trial. Therefore, the contention of the petitioner regarding Section 52A also can only be considered during Trial.
10. In the case in hand, the total recovered contraband is 30 kg of Ganja and that the entire contraband was recovered from this petitioner, which is a commercial quantity. Though the petitioner raised certain defence to overcome the rigour under Section 37 of NDPS Act, in view of the above discussion, this Court could not find any merits.
11. Apart from the above defence, the learned counsel for the petitioner also raised the defence under Article 21 of the Constitution of India, as there was no progress in the Trial in 2020 case. But, while looking into the factual position, so far 7 witnesses were examined and only because of issuance of NBW against the other accused, the Trial could not be proceeded with. At this juncture, it is relevant to mention that the petitioner has got every right to seek remedy before the Trial Court to split up the case.
12. At this juncture, the learned counsel for the petitioner would submit that the petitioner has already moved for such relief. In such view of the above circumstances, this being a commercial quantity of contraband, this Court could not find any merits in favour of the petitioner.
13. Accordingly, this Criminal Original Petition stands dismissed.
