Waiver of Right Under Section 50 NDPS is Valid Even Without Panch Signatures: Bombay High Court

“Reasonable Belief of Innocence Cannot Be Inferred When Commercial Quantity of Narcotic is Recovered From Possession” –In a detailed and reasoned judgment  Bombay High Court dismissed a bail application filed by Blessing Amaka Okonko, a Nigerian national accused under the Narcotic Drugs and Psychotropic Substances Act, 1985, for being found in possession of 460 grams of Mephedrone (MD), which is classified as commercial quantity under the law.

Justice Dr. Neela Gokhale held that no reasonable grounds exist to believe that the applicant is not guilty of the offence, and thus, Section 37 of the NDPS Act, which places a statutory embargo on bail in such cases, was squarely applicable.

"Even If Panchas Don’t Sign Section 50 Letter, It Does Not Invalidate the Search" – Court Clarifies Scope of Procedural Compliance

One of the key objections raised by the applicant was the non-compliance of Section 50 of the NDPS Act, arguing that panchas had not countersigned the notice apprising her of her right to be searched in the presence of a Gazetted Officer or Magistrate. However, the Court found that the applicant herself had signed a written waiver, stating:

“I am aware about my rights. Police can take my personal search. I have no objection.”

Rejecting the argument, the Court observed: “Section 50 of the Act does not require the Panchas to countersign the letter... The said lapse is thus not sufficient to record a reasonable belief that the Applicant has not committed the offence.” [Para 9]

The Court also noted that the search was conducted by Police Inspector Sutar, a Gazetted Officer, in the presence of a lady panch and a lady police officer in a secluded location, thus meeting all statutory requirements.

Compliance With Section 42 Established Through Station Diary and Written Intimation

Another defense raised was the alleged non-compliance with Section 42 of the NDPS Act, which requires that information regarding narcotic offences be reduced into writing and forwarded to a senior officer. The Court rejected this argument after examining the record and held:

“There is compliance of Section 42 of the Act and the objection of Mr. Parmar regarding non-compliance... is not sustainable.” [Para 7]

Justice Gokhale referred to the letter signed by PI Lata Sutar and an entry in the station diary at 4:30 AM on 1st January 2023, recording the information provided by co-accused Raju, which led to the arrest of the present applicant within hours.

“Commercial Quantity Recovered – Rigorous Conditions of Section 37 NDPS Act Apply Strictly”

The Court emphasized that 460 grams of Mephedrone recovered from the applicant's jacket pocket constitutes a commercial quantity, triggering the twin conditions under Section 37(1)(b) of the NDPS Act. These conditions are:

1. The Public Prosecutor must be given an opportunity to oppose the bail.

2. The Court must be satisfied that there are reasonable grounds to believe the accused is not guilty, and that she is unlikely to commit any offence while on bail.

Relying on the Supreme Court’s decision in Collector of Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, the Court clarified:

“‘Reasonable grounds’ means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty.” [Para 13]

Applying this to the case, the Court held:

“The Applicant was not only apprehended with a large quantity of MD... she was supplying for sale the said substance to dealers, including Raju and Papya.” [Para 14]

“In view of the magnitude of the offence, the possibility of returning to the same network, and the difficulty in securing the Applicant’s presence due to her illegal residency status, I am not inclined to release the Applicant on bail.” [Para 14]

Illegal Stay in India Further Tilts Scale Against Bail

The Court noted that the applicant’s visa had expired, making her unauthorizedly resident in India. This fact was seen as a significant risk factor:

“It is likely that the Applicant may not remain present to attend the trial and her presence will be difficult to secure.” [Para 11]

Objections on Procedural Infirmities Are Matters for Trial – Bail Not the Stage to Evaluate Evidence

While the applicant attempted to raise various procedural and evidentiary infirmities in the prosecution’s case—such as absence of phone records, WhatsApp chats, or bank transactions linking her to the other accused—the Court held:

“These relate to evaluation of evidence, which matters can be properly appreciated by the Trial Court... The Constitutional Court is not required to decide the question of guilt or innocence at the bail stage.” [Para 15]

The Court also rejected the argument of “long incarceration”, holding that for serious offences carrying 10–20 years of rigorous imprisonment, the current custody period (just under 2 years) is not excessive or unjustified. [Para 16]

Bail Rejected; NDPS Stringency Prevails in Commercial Quantity Cases

Holding that no reasonable ground exists to believe the applicant is not guilty, and that the statutory conditions under Section 37 were not satisfied, the Bombay High Court rejected the bail application of the foreign national caught with 460 grams of Mephedrone.

“No case is made out for dispensing with the mandatory requirement of Section 37 of the NDPS Act. In any case, I am unable to record a finding that there is reasonable ground to believe that the Applicant has not committed the said offence.” [Para 16]

The Court clarified that the observations are prima facie and the trial court shall decide the case uninfluenced by these findings. [Para 18]

Date of Decision: 3rd December 2025