800gm heroin seizure in Haryana: HC grants bail, saying accused not properly informed of search procedure

The accused of a heroin seizure in Haryana had pleaded before the HC that they were not clearly informed of their right to have a magistrate or a gazetted officer before conducting a search for heroin, and thus should be granted bail

Chandigarh The Punjab and Haryana high court has granted bail to an accused in a 800-gram heroin seizure case as the accused was not properly informed of his rights during search at the time of alleged recovery. Section 50 of the Narcotics Drugs and Psychotropic Substances (NDPS) provides for the right to be searched in the presence of a gazetted officer or a magistrate.

The bench added that merely informing the accused that he had rights under the NDPS Act, without specifying what rights the accused had would not constitute compliance (HT Photo)

The FIR in the case was registered on January 22 at Kundli police station in Sonepat. The search in the case was done by the police party, which made the seizure and a magistrate or a gazetted officer was not involved.

“No doubt, notice under Section 50 of the NDPS Act mentions the petitioner having been apprised of his rights, but the said notice is absolutely silent as to what rights were apprised to the petitioner, as also whether he was apprised of his right under Section 50 of NDPS Act, which to be searched in the presence of a magistrate or a gazetted officer. The said notice merely mentions the petitioner having been informed of his rights as also the option if he so desired to get his search conducted by a magistrate or gazetted officer,” the bench of justice BS Walia said, granting bail to the accused.

The bench added that merely informing the accused that he had rights under the NDPS Act, without specifying what rights the accused had would not constitute compliance with the mandatory requirement under Section 50 sub-section (1) of the Act.

“This not being complied with, and considering the strict punishment provided for an offence under the NDPS Act, the failure to comply with Section 50 of the NDPS Act renders the recovery of the illicit article suspect,” the bench added.

‘NOT SEARCHED IN PRESENCE OF GAZETTED OFFICER’

The court was hearing a bail plea from one Sunil. He, along with Mukdar, Arvind and Vikas were travelling in a car and 803gm of powder alleged to be heroin (commercial quantity) was seized by the Haryana Police. The accused had argued before court that since he was not informed of his right to be searched in the presence of a gazetted officer or a magistrate, there was non-compliance of Section 50 of the NDPS Act. Hence, he be granted bail.

However, a consent memo was taken stating that he agreed for the search and that he was informed of the rights at the time of the search. The court had found that the accused was apprised of his rights, but the notice was silent as to what rights he was apprised of to conduct the search.

The government counsel argued the petitioner was informed, of the apprehension of the police that he had some intoxicating material and that he was given option to get his search conducted by a magistrate or gazetted officer and there was due compliance with the mandate of NDPS Act. However, the court observed that in this case the requirement under Section 50 NDPS Act was not merely a technical breach.