Bookmark
PDF
Share
CaseIQ

Emeka Emmanuel v. State .

Delhi High Court

Nov 18, 2022

Judgment

Subsequent
References

CaseIQ

Smart Summary (Beta)

Structured Summary of Judicial Opinion

Factual and Procedural Background

This opinion concerns an application for bail in FIR No. 612/2018 dated 23.11.2018 registered at Police Station Tilak Nagar under Sections 21 and 25 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). The applicant's bail request was limited to the contention that a proper notice under Section 50 of the NDPS Act was not given. The notice under Section 50 issued in the case was reproduced in the record. The court considered the content of that notice, compared it to a previously considered notice in Mohd. Rahis Khan v. State, reviewed relevant Supreme Court authority, heard submissions from learned counsel for the applicant and the learned APP, and decided the bail application.

Legal Issues Presented

Whether the notice given to the applicant under Section 50 of the NDPS Act complied with the mandatory requirements of that provision (i.e., whether it informed the person of the legal right to have the search conducted in the presence of a Gazetted Officer or Magistrate, as required).
Whether non-compliance with Section 50 of the NDPS Act vitiates the recovery and, if so, whether that non-compliance entitles the applicant to bail.
Whether any procedural irregularity in giving the Section 50 notice affects the applicant's right to personal liberty such that bail should be granted despite the nature/quantity of seizure or other statutory provisions (including reference to Section 37 of the NDPS Act).

Arguments of the Parties

Applicant's Arguments (Mr. Kushwaha)

The bail application was confined to a limited ground: the notice under Section 50 of the NDPS Act was not properly given to the applicant.
Learned counsel relied on the Coordinate Bench decision in Mohd. Rahis Khan v. State (2014 (1) LRC 363 (Del)), particularly paragraphs 8–10, to argue that an offer to conduct the search in front of a Gazetted Officer or Magistrate does not satisfy the mandatory requirements of Section 50.
The notice issued in the present case is almost identical to the defective notice considered in Mohd. Rahis Khan v. State, and therefore the principles in that decision apply here.

Respondent's Arguments (Ms. Arya, learned APP)

The Tehrir (entry/report) recorded on the same day complies with the mandate of Section 50 because it used the specific words "legal right." (As argued by the APP.)
The search in the present case was conducted before a Gazetted Officer, which (according to the APP) addresses the Section 50 concern.
The seizure involved a commercial quantity, bringing the bar under Section 37 of the NDPS Act into play (argument deployed to resist bail).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mohd. Rahis Khan v. State [(2014) (1) LRC 363 (Del)]	This Coordinate Bench held that a notice which merely offers to conduct a search "in case he so desires" before a Gazetted Officer or Magistrate is an offer and does not satisfy the mandatory requirement of Section 50 of the NDPS Act. It distinguished between giving an option and informing the person of a legal right.	The Court found the present notice to be almost identical to that in Mohd. Rahis Khan and held that the principle is squarely applicable — i.e., the present notice does not meet the mandatory requirements of Section 50.
State of Delhi v. Ram Avtar Alias Rama [(2011) (3) JCC 146]	The Supreme Court observed that Section 50's language is plain, mandatory and must be complied with in full; contraband seized as a result of search made in contravention of Section 50 cannot be used to fasten unlawful possession on a person beyond reasonable doubt. Compliance is imperative and not merely substantial.	The Court relied on this apex authority to reinforce that Section 50 must be fully complied with and that non-compliance entails that recovery may not be relied upon to establish unlawful possession, supporting entitlement to bail where Section 50 is violated.
Ali Mustaffa Abdul Rahman Moosa (reference in the opinion)	Referenced for the principle that contraband seized as a result of illegal search or seizure cannot be used to fasten liability of unlawful possession under the NDPS Act, even though other statutes may allow evidence from illegal searches.	The Court used this authority (as discussed in the Ram Avtar excerpt) to underscore that evidence obtained in violation of Section 50 is not available for proving unlawful possession under the NDPS Act.
Pooran Mal v. Director of Inspection [(1974) 1 SCC 345]	This older Supreme Court decision was referenced as an instance where evidence collected from an illegal search/seizure could be used in proceedings under the Income Tax Act; it was considered and distinguished in later NDPS jurisprudence.	The Court recited how the Supreme Court in subsequent cases treated Pooran Mal and clarified its limited applicability; the present Court relied on that reasoning to reject the use of illegally seized contraband to fasten NDPS liability.
Anil Kumar @ Nillu v. State [(2022) (3) JCC 1669]	The Coordinate Bench held that in the absence of fair, just and reasonable procedure, the right to personal liberty is affected.	The court invoked this decision in support of the proposition that procedural defects (here, in issuing the Section 50 notice) impact personal liberty and weigh in favour of granting bail where procedure affecting liberty is not observed.

Court's Reasoning and Analysis

The court's analysis proceeded in the following steps, based strictly on the material in the opinion:

The court compared the Section 50 notice issued in the present case to the notice considered in Mohd. Rahis Khan v. State and found them "almost identical." The Mohd. Rahis Khan decision held that a mere offer to conduct a search before a Gazetted Officer or Magistrate does not satisfy Section 50.
The court emphasized that Section 50 of the NDPS Act is mandatory and must be complied with fully, not merely substantially. This position is reinforced by the Supreme Court's decision in State of Delhi v. Ram Avtar, which the court quoted and relied upon.
The court addressed the respondent's contentions (that the Tehrir recorded on the same day used the words "legal right," that the search occurred before a Gazetted Officer, and that the seizure was of commercial quantity invoking Section 37). It held that these facts (Tehrir or actual presence of a Gazetted Officer) are immaterial if the foundational notice itself fails to inform the person of the statutory right. The notice is the "fountainhead."
Because the notice under Section 50 failed to inform the applicant of the statutory right to be searched before a Gazetted Officer or Magistrate, the court concluded that the mandatory requirement was not met in the first instance; consequently the recovery is "under doubt" and cannot be sustained.
The court observed that, given this defect as the "fountainhead" of the recovery, it could not place reliance on the recovery to oppose bail and was prima facie of the view that the applicant would not commit any offence if released on bail.
The court further noted that the twin conditions of Section 37 (which places a bar on bail in certain NDPS cases) are nevertheless met in the sense that the learned APP was given the right to oppose bail — i.e., the prosecution had the opportunity to resist release — but this did not outweigh the Section 50 defect.
Finally, the court invoked the principle (as cited in Anil Kumar @ Nillu) that absence of fair, just and reasonable procedure impacts personal liberty, reinforcing the grant of bail on procedural grounds.

Holding and Implications

Core Ruling: The bail application is allowed and the applicant is directed to be released on bail subject to specified terms and conditions.

Direct Consequences / Terms of Release (as ordered by the Court)

The applicant shall furnish a personal bond and a surety bond in the sum of Rs. 50,000/- each, to the satisfaction of the Jail Superintendent.
The applicant shall appear before the Court as and when the matter is taken up for hearing.
The applicant shall join investigation as and when called by the Investigating Officer concerned.
The applicant shall provide her mobile number to the Investigating Officer concerned, which shall be kept in working condition at all times; the applicant shall not switch off or change the same without prior intimation to the IO during the period of bail.
In case the applicant changes her address, she will inform the IO concerned and the Court.
The applicant shall not leave the country during the bail period and shall surrender her passport, if any, at the time of release before the Jail Superintendent.
Till the applicant obtains a valid VISA, she shall be kept in an observation home in accordance with FRRO guidelines.
The applicant shall not indulge in any criminal activity during the bail period.
The applicant shall not communicate with or come into contact with any of the prosecution witnesses or any member of the victim's family, nor shall she tamper with evidence in the case.

Broader Implications

The court's decision rests on established authority that Section 50 is mandatory and that non-compliance can render a recovery unreliable for proving unlawful possession under the NDPS Act. The opinion applies existing precedent to the facts and directs release on bail on those procedural grounds. The judgment does not purport to lay down a novel legal principle; rather it applies and follows previously stated legal principles regarding mandatory compliance with Section 50 and the consequences of its violation.

Disposition: The application is disposed of in the terms stated above (applicant released on bail subject to conditions).

Show all summary ...

Jasmeet Singh, J.:— This is an application filed seeking bail in the FIR No. 612/2018 dated 23.11.2018 registered at PS Tilak Nagar under Section 21/25 of the NDPS Act.

2. Mr. Kushwaha, learned counsel for the applicant states that the applicant is resting his bail on a limited ground that no proper notice under Section 50 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) was given to the applicant. The notice under Section 50 of the NDPS Act reads as under:—

“(NOTICE u/S 50 OF THE NDPS ACT, 1985)

EMEKA S/O EMMANUEL EZEONUORAH

R/O FESTAC, LAGOS, NIGERIA

Sub : Notice under Section 50 of the NDPS Act, 1985

Whereas there is reason to believe that Narcotic Drugs/Psychotropic Substances and things which may furnish evidence of commission of an offence under the NDPS Act, 1985 are in your possession, therefore, your personal search is to be conducted by the undersigned, if you so require, such search will be conducted in presence of the nearest Gazetted Officer or Magistrate.

(Charan Singh)

ASI, No. 196/W

Narcotics Squad

West District, ND”

3. Mr. Kushwaha, learned counsel for the applicant has drawn my attention to a judgment of a Coordinate Bench in “Mohd. Rahis Khan v. State” [(2014) (1) LRC 363 (Del)], and more particularly paragraphs 8, 9 and 10 which read as under:—

“8. Applying the law laid down by the Apex Court to the facts of this case, it would be useful to reproduce the notice so issued to the appellant under Section 50 of the NDPS Act:

“Notice u/s. 50 NDPS Act

You, Mohd. Raees Khan s/o. Mohd. Pyare Khan r/o. Village Mohanpur, P.S. Faridpur, Post Office Navada Bilsadi, District Bareli, U.P. are hereby informed that we have suspicion that you have some more smack in your possession, therefore, we intend to search you. If you desire, your search may be carried out infront of a gazetted officer or a Magistrate, who can be requested to come to the spot and you can also carry out the search of the police party. (NARENDER KUMAR, S.I.)

Special Staff/ME

27.6.2001

Witnesses:

1. Ct. Devender Kumar 1120/NE

2. Ct. Pradeep Kumar 897/NE

Reply to notice u/s. 50 NDPS Act Whatever smack I had in my possession you have already seized. Now I do not have any more smack. I do not want that my search is carried out in the presence of a gazetted officer or a Magistrate, nor I want to carry out the search of the police party.

(NARENDER KUMAR, S.I.)

Special Staff/ME 27.6.2001

Witnesses:

1. Ct. Devender Kumar 1120/NE

2. Ct. Pradeep Kumar 897/NE”

9. A careful examination of this notice would show that an option was given to the appellant that if the appellant so desired the search could be conducted in the presence of a gazetted officer or a Magistrate, however, he had responded by saying that since smack had already been recovered, he has no further smack; he did not want his search to be carried out in the presence of a gazetted officer or a Magistrate. Various decisions rendered by the Apex Court have drawn a distinction between an option being given to a person that he may have the search conducted in the presence of a gazetted officer or a Magistrate and communicating to him in clear words that he has a right in law to be searched in the presence of a Magistrate or a gazetted officer.

10. In this case, a mere offer was made to the appellant that in case he so desires, his search may be conducted in front of a gazetted officer. Thus a mere offer would not satisfy the mandatory ingredients of section 50 of the NDPS Act. In my view the judgment in the case of Ram Avatar (Supra) is fully applicable to the facts of this case, as a similar offer was given to Ram Avtar and the Apex Court held that such an offer did not comply with the mandatory requirement of section 50 of the NDPS Act.”

4. The facts of the said case are squarely applicable to the issue in hand. The notice issued in the present case is almost identical to the notice as reproduced in “Mohd. Rahis Khan v. State”.

5. This Court was of the view that these kinds of notices only are offer to the applicant and do not satisfy the mandatory ingredients of Section 50 of the NDPS Act. The Hon'ble Supreme Court in “State of Delhi v. Ram Avtar @ Rama” [(2011) (3) JCC 146] has also held as under:—

24. We are also unable to appreciate how the provisions of Section 50 of the Act can be read to support such a contention. The language of the provision is plain and simple and has to be applied on its plain reading as it relates to penal consequences. Section 50 of the Act states the conditions under which the search of a person shall be conducted. The significance of this right is clear from the language of Section 50(2) of the Act, where the officers have been given the power to detain the person until he is brought before a Gazetted Officer or Magistrate as referred to in sub-section (1) of Section 50 of the Act. Obviously, the legislative intent is that compliance with these provisions is imperative and not merely substantial compliance. Even in the case of Ali Mustaffa Abdul Rahman Moosa (supra), this Court clearly stated that contraband seized as a result of search made in contravention to Section 50 of the Act, cannot be used to fasten the liability of unlawful possession of contraband on the person from whom the contraband had allegedly been seized in an illegal manner. ‘Unlawful possession’ of the contraband is the sine qua non for conviction under the Act. In the case of Ali Mustaffa Abdul Rahman Moosa (supra), this Court had considered the observation made by a Bench of this Court, in an earlier judgment, in the case of Pooran Mal v. Director of Inspection [(1974) 1 SCC 345] which had stated that the evidence collected as a result of illegal search or seizure could be used as evidence in proceedings against the party under the Income Tax Act. The Court, while examining this principle, clearly held that even this judgment cannot be interpreted to lay down that contraband seized as a result of illegal search or seizure can be used to fasten the liability of unlawful possession of the contraband on the person from whom the contraband had allegedly been seized in an illegal manner. ‘Unlawful possession’ of the contraband, under the Act, is a factor that has to be established by the prosecution beyond any reasonable doubt. Indeed, the seized contraband is evidence, but in the absence of proof of possession of the same, an accused cannot be held guilty under the Act.”

6. Ms. Arya, learned APP states that in the present case, the Tehrir recorded on the same day complies with the mandate of Section 50 of the NDPS Act as the specific word ‘legal right’ has been used. She further states that in the present case, the search was conducted before the Gazetted Office. She also states that in the present case, the seizure is of commercial quantity and hence the bar of Section 37 of the NDPS Act also applies.

7. I have heard learned counsels for the parties.

8. I am of the view that the judgment of “Mohd. Rahis Khan v. State” is squarely applicable. The Section 50 of the NDPS Act has to be complied with both, not only substantially but fully, as it is a mandatory requirement.

9. The Hon'ble Supreme Court as well as this Court has clearly opined that in case Section 50 of the NDPS Act is not complied with, the applicant is entitled to bail.

10. In the present case, I am of the view that the notice under Section 50 of the NDPS Act fails to give notice to the applicant his legal right of being searched before a Gazetted Officer. The fact whether the Tehrir or the fact whether the applicant was searched before the Gazetted Officer is not relevant since the fountainhead i.e. the notice under Section 50 of the NDPS Act fails to give notice to the applicant of his statutory right.

11. Since the mandatory requirement of Section 50 of the NDPS Act has not been met in the first instance, the recovery itself is under doubt. Any recovery made without compliance of Section 50 of the NDPS Act itself cannot be sustained.

12. In this view of the matter, the twin conditions of Section 37 are also met as the learned APP has been given the right to oppose the bail application.

13. Since the fountainhead of the recovery itself is missing, I am of the view that no reliance can be placed on the recovery made from the applicant and I am also prima facie of the view that if the applicant is released on bail, he would not commit any offence.

14. As the complaint also contains the violation of Section 468 and 471 IPC, my attention has been drawn to the judgment titled “Anil Kumar @ Nillu v. State” [(2022) (3) JCC 1669], wherein the Coordinate Bench has held that in case of absence of fair, just and reasonable procedure, the right of the applicant to personal liberty is affected.

15. The applicant is in custody since 23.11.2018.

16. In this view of the matter, I am inclined to allow the application. The applicant is directed to be released on bail subject to the following terms and conditions:—

i. The applicant shall furnish a personal bond and a surety bond in the sum of Rs. 50,000/- each, to the satisfaction of the Jail Superintendent;

ii. The applicant shall appear before the Court as and when the matter is taken up for hearing;

iii. The applicant shall join investigation as and when called by the I.O concerned;

iv. The applicant shall provide her mobile number to the Investigating Officer (IO) concerned, which shall be kept in working condition at all times. The applicant shall not switch off, or change the same without prior intimation to the IO concerned, during the period of bail;

v. In case the applicant changes her address, she will inform the IO concerned and this Court also;

vi. The applicant shall not leave the country during the bail period and surrender her passport, if any, at the time of release before the Jail Superintendent;

vii. Till the time the applicant obtains a valid VISA, she shall be kept in observation home in accordance with FRRO guidelines;

viii. The applicant shall not indulge in any criminal activity during the bail period;

ix. The applicant shall not communicate with, or come into contact with any of the prosecution witnesses, or any member of the victim's family, or tamper with the evidence of the case.

17. The application is disposed of in the aforesaid terms.