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by Admin
07 May 2024 2:49 AM
Requirements of Section 50 NDPS Act have been met—mere technical objections cannot override the statutory embargo on bail under Section 37 - Delhi High Court refused regular bail to a Nigerian national accused under Sections 22 and 25 of the NDPS Act. Justice Shalinder Kaur held that the procedural safeguards under the NDPS Act, particularly Section 50, were substantially complied with and that the recovery of commercial quantity justified the continued incarceration of the accused.
The Court made it clear that mere procedural lapses, without substantial prejudice, do not entitle an accused to bail, especially when the statutory embargo of Section 37 is attracted.
The petitioner, Onyekachi Anya Friday, was arrested on 15.06.2023 following a tip-off received by the Special Staff, South East District, Delhi, that a Nigerian national would be delivering MDMA drugs in the Govindpuri Extension area. A raid was conducted and the petitioner was apprehended while riding a scooty.
The police recovered 8 grams of MDMA from the petitioner’s jeans pocket. Based on a disclosure statement, a second raid was carried out at the petitioner’s rented residence where a further 205 grams of narcotic substance, ₹71,590 in cash, and three mobile phones were seized.
The FSL report confirmed that the substances contained Methamphetamine, Cocaine, Lidocaine, Caffeine and Phenacetin. The petitioner’s bail was rejected by the ASJ, Saket Courts, prompting him to move the High Court.
“The person about to be searched has the right to be searched before a Gazetted Officer or Magistrate—but once refused, the empowered officer can proceed.”
The petitioner argued that Section 50 NDPS Act had not been complied with, stating that he was not informed about the right to be searched before the “nearest” Gazetted Officer or Magistrate. His counsel submitted that the notice under Section 50 lacked valid consent and was defective.
Rejecting the contention, the Court stated: “In view of the guidelines laid down in Ranjan Kumar Chadha v. State of Himachal Pradesh and State of NCT of Delhi v. Mohd. Jabir, the raiding party has complied with all the requisite requirements of Section 50 of the NDPS Act applicable to it.”
Referring to Mohd. Jabir, the Court underlined: “Use of the expression ‘nearest’ refers to convenience... delay should be avoided... Nothing more is articulated or meant by the words used.”
The Court noted that the petitioner was informed in English, refused search before a magistrate or gazetted officer in writing, and even signed the Section 50 notice himself.
"Exclusive Possession of Rented Premises Established by Landlord’s Statement"
Another argument raised was that the rented accommodation from which 205 grams of narcotics were recovered was not in the exclusive possession of the petitioner, thus depriving the prosecution of the presumption under Section 106 of the Indian Evidence Act.
The Court rejected this, holding: “The landlord, in his statement under Section 161 CrPC, has informed the IO that he had given the room exclusively to the petitioner. The plea that others had access to the room is without merit.”
“Mere Delay in Sampling Cannot Vitiate Trial”: No Violation of Section 52A NDPS Act
It was also argued that since the sample was drawn on 16.06.2023, a day after the recovery on 15.06.2023, there was non-compliance with Section 52A.
The Court referred to the recent Supreme Court decision in Narcotics Control Bureau v. Kashif, observing: “Any lapse or delayed compliance under Section 52A would be merely a procedural irregularity... It would neither entitle the accused to bail nor vitiate the trial.”
Citing Union of India v. Mohan Lal, the Court reiterated: “Section 52A does not prescribe any fixed timeline for sampling. While it must be done without undue delay, a one-day delay in this case is not fatal.”
“Section 37 Embargo Clearly Applies—Petitioner Cannot Show He Will Not Reoffend”
Justice Kaur strongly emphasized that the case involves commercial quantity, attracting the bar of Section 37 of the NDPS Act, which allows bail only if the Court is satisfied that:
• There are reasonable grounds to believe the accused is not guilty; and
• He is not likely to commit any offence if released.
The Court remarked: “There is nothing before the Court to suggest that the petitioner is not likely to commit a similar offence in the future, if released on bail.”
The fact that the petitioner is a foreign national, coupled with the fact that his accomplices are still absconding, weighed heavily against granting bail.
The Delhi High Court concluded that all procedural requirements were adequately complied with. The accusations involve commercial quantity, and there was no material on record to suggest the petitioner would not reoffend.
“In the light of the aforesaid, there is no ground for grant of bail to the petitioner and the bail application along with the pending application is, therefore, dismissed.”
Date of Decision: 26 March 2025
