Full Text
HIGH COURT OF DELHI
OKECHUKWU OKEY@ PAULINUS UCHENNA .....Applicant
Through: Mr. Tarish Sathe, Advocate.
Through: Mr. Utsav Singh Bain, SPP
JUDGMENT
1. This bail application has been filed under Section 439 of the Code of Criminal Procedure 1973 seeking regular bail in Case No. VIII/33/DZU/2021 under Section 8 (c) and Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) registered at Police Station NCB RK Puram. The applicant has been in custody since 19th June 2021. Factual Background
2. The case of the prosecution is that on 18th June 2021, based on secret information, the applicant was apprehended near Fortis Hospital, Vasant Kunj, New Delhi, with 115 Grams (commercial quantity) of Cocaine recovered from his possession. BAIL APPLN. 864/2024 2 of 18
3. Notice under Section 50 of the NDPS Act was served, and the provisions were explained. Applicant, however, declined the offer of having the search conducted in the presence of a Gazetted Officer or a Magistrate.
4. He wrote his reply on the notice under Section 50 of the NDPS Act with his signature. An independent witness also signed on the same notice. A statement under Section 67 of the NDPS Act was recorded wherein he admitted his involvement in the commission of the offence, and he was arrested on 19th June 2021.
5. A chemical analysis report from the Central Revenues Control Laboratory (“CRCL”) was received, and the sample tested positive for Cocaine Hydrochloride.
6. As per the Status Report, there were 12 Panchnama witnesses. Counsel for Applicant submitted that the Narcotics Control Bureau’s (‘NCB’) case was riddled with lacuna and inconsistencies, failing to prove the case beyond a reasonable doubt. The recovery attributed to the applicant was questionable and appeared to be planted, leading to his false implication. Submissions of the Applicant
7. First, it was submitted that notice under Section 50 of the NDPS Act did not mention the word ‘nearest’ Gazetted Officer or Magistrate and instead offered the option of “any Gazetted Officer or Magistrate", relying upon the decision of the Constitution Bench of the Supreme Court in Vijaysinh Chandubha Jadeja v. State of Gujarat 2010 SCC OnLine SC 1248. Applicant’s counsel argued that provisions of Section 50 were mandatory and strict in nature, and permission to mention ‘nearest’ made the notice faulty. Reliance was further placed on Ahmed v. State of Gujarat., 2000 SCC BAIL APPLN. 864/2024 3 of 18 OnLine SC 1211, and decisions of co-ordinate Benches of this Court in Mohd. Jabir v. State of NCT of Delhi (2023) SCC OnLine Del 1827 and Ikram v. State of NCT of Delhi in Bail Application No. 3707/2022 dated 12th August
2023.
8. Additionally, reliance was placed on decision of the Supreme Court in State of Jharkhand and Ors. v. Ambay Cements and Anr. 2004 SCC OnLine SC 1438, noting that whenever the statute prescribes that a particular act is to be done in a particular manner, failure to comply with such a requirement is mandatory. Furthermore, where a statute is penal in nature it must be strictly construed and followed.
9. Second, it was highlighted that the applicant was a Nigerian National and his passport was expiring on 10th December 2023. The application for custody parole to renew the passport at the Nigerian High Commission was allowed vide order dated 25th November 2023. Subsequently, the new passport bearing no. A12907775 was deposited.
10. Third, it was submitted that for the purposes of bail, was the applicant’s prolonged custody without the trial having proceeded ahead substantially is to be accounted for. For this, the reliance was placed on the Supreme Court's decision in Rabi Prakash v. State of Odisha 2023 SCC OnLine SC 1109. In the trial, only one witness has been partially examined out of 12 witnesses and it was stated that, in light of a series of decisions of the Supreme Court, prolonged custody would infringe upon the constitutional right under Article 21 for a speedy trial. Submissions on behalf of NCB BAIL APPLN. 864/2024 4 of 18
11. Counsel for NCB, however, relied upon the decision of the Coordinate Bench of this Court in Bantu v. State (NCT of Delhi) 2024 SCC OnLine Del 4671, which noted, relying on the decision of Supreme Court in State of Punjab v. Baldev Singh 1999 SCC OnLine 632, that the information to be given to the person searched need not be in writing. The provisions of Section 50 are not explicitly stated as mandatory or directive. Furthermore, the accused has to demonstrate how the omission has caused prejudice to the accused.
12. The Court underscored the premise of substantial compliance over mere technical adherence, noting that the focus had been on ensuring that the rights of the accused were sufficiently safeguarded.
13. The Coordinate Bench of this Court in Bantu (supra) noted that the officer has to undoubtedly take him to the nearest Gazetted Officer or Magistrate. However, not informing the suspect that he would be taken to the ‘nearest’ Magistrate for the purpose of search, did not amount to noncompliance with Section 50 of the NDPS Act.
14. The omission to mention the word ‘nearest’, therefore, did not amount to non-compliance if no prejudice was caused. Reliance on Mohd. Jabir v. State (supra) was noted as pending consideration before the Supreme Court. Analysis
15. As regards the omission to mention ‘nearest’ and the notice under Section 50, this Court has already taken a view in Emeka Prince Lath v State NCT of Delhi 2024:DHC:7768, after analyzing various decisions and the statutory provisions, that the said omission does not cause any prejudice to BAIL APPLN. 864/2024 5 of 18 the accused, nor does it amount to non-compliance of the Section 50 provisions.
16. The essential requirement is to take the suspect to the ‘nearest’ Gazetted Officer or Magistrate, but the option to be exercised is between being searched before a Gazetted Officer / Magistrate or not. In this regard, the following analysis presented in Emeka Prince Lath v State (supra), is extracted hereunder: “Mention of word ‘nearest’ in Section 50 NDPS 12.[1] Petitioner seeks to rely on decision by Coordinate Bench of this Court in Mohd. Jabir v State (2023) (supra) which mandated that the word ‘nearest’ must be mentioned in the notice, to ensure complete compliance of Section 50 NDPS Act. Notwithstanding, that the decision in Mohd. Jabir (supra) is now under challenge before the Supreme Court and the matter is pending, the Court deems it fit to give its own opinion in the matter, on assessment of language of the provision itself. 12.[2] Section 50 of NDPS Act prescribes the conditions under which search of persons shall be conducted. It is premised on a search being conducted by an officer authorised under Section 42. It mandates that such search would be made without unnecessary delay before the nearest Gazetted Officer [of any department mentioned in Section 42 i.e. Central Excise, Narcotics, Customs, Revenue Intelligence, or any other department of the Central Government empowered by special order of the government] or to a nearest Magistrate. The mandate prescribed is to take such a person to the nearest Gazetted Officer or to the nearest Magistrate. This, as per the provision, ought to be accomplished only after the person being searched “so requires”. Thus, a requirement has to be ascertained from the person being searched. The provision in itself BAIL APPLN. 864/2024 6 of 18 does not specify as to how that requirement is to be ascertained. 12.[3] The decisions in State of Punjab v Baldev Singh 1999 6 SCC 172 (para 25) seems to suggest that even an oral determination is enough. However, decisions in Vijaysinh Chandubha Jadeja v State of Gujarat 2011 1 SCC 609 (para 24) seem to mandate that it ought to be in writing. Either way, it is well-settled by State of Punjab v Baldev Singh (supra) (para 32), that compliance of Section 50 is mandatory and not optional. Therefore, what needs to be ascertained is the option to be searched before a Gazetted Officer or Magistrate, and not whether the said Gazetted Officer or Magistrate is the ‘nearest’. 12.[4] When the person being searched is asked to exercise the option, they are effectively being told that since the search is a body search, it can be before a Gazetted Officer or a Magistrate in order to obviate and avoid any suspicion of planting narcotics on the person. This conflates with the principle of inviolability of personal space and privacy and the sanctity thereof. The person being searched is, therefore, to be asked, in writing, and has to respond, to be recorded in writing, so that the recorded evidence shows that an option has been duly exercised either which way. 12.[5] Subsequently, if the option exercised is for a search to be conducted before a Gazetted Officer or a Magistrate, the mandate is to take them to the ‘nearest’ one available, clearly in order to avoid any further distress to a person who has yet not been searched. Therefore, to amplify the requirement of “taking” to a nearest Gazetted Officer or a Magistrate, into the language of the notice itself, omission of which maybe taken as a serious procedural lapse, is in the opinion of this Court, not the correct view. Mohd. Jabir (supra), takes this view only on the particular facts therein that the search was conducted after the option being BAIL APPLN. 864/2024 7 of 18 exercised, by the ACP who formed a part of the raiding party. This Court in Mohd. Jabir (supra) was dealing with a situation where the rights of the person searched were compromised or would cast a shroud of doubt if a raiding party member itself becomes the supervisory officer, being gazetted per his rank. Seen from the viewpoint of the person searched, this would introduce an element of being falsely implicated with contraband with no real assurance of independent supervision. In this light, testing on facts in Mohd. Jabir (supra), it could be possible that even if the notice mentioned the ‘nearest’, and the option was exercised, it could still include the Gazetted Officer/ACP or a higher officer who was present at that point. 12.[6] A Coordinate Bench of this Court in Bantu v. State Govt. Of NCT of Delhi 2024:DHC:5006 has also taken a similar view and considered that omission to mention ‘nearest’ is at best, a procedural issue, and the accused must show prejudice being caused. In any event, a Special Leave Petition bearing no.SLP (Crl.) 1173/2024 State of NCT of Delhi v Mohd. Jabir against Mohd. Jabir (supra) is pending before the Supreme Court and, as of 30th August 2024, the matter has been listed for 2nd December 2024. 12.[7] Reliance is placed on Vijaysinh Chandubha Jadeja v State of Gujarat (supra), where it is stated that substantial compliance, short of complete compliance of Section 50, cannot be permitted in law. Considering this view taken by Constitutional Bench of the Supreme Court, in the opinion of this Court, complete compliance has to be made, notice in writing ought to be given, communicated in the language that the person to be searched understands, without a proforma reply typed out, necessitating a written note with signatures of option being exercised by the person searched, and being taken to a nearest Gazetted Officer or Magistrate. BAIL APPLN. 864/2024 8 of 18 12.[8] In this regard, in State v Denis Jauregul Mendizabal 2022:DHC:5752, this Court stressed that Section 50 of the NDPS Act demands strict compliance, including providing notice in the accused’s language (the accused was a Spanish National) and involving an independent witness and a Gazetted Officer or Magistrate. The Court found these procedural failures critical, underscoring the need for complete adherence to ensure justice. 12.[9] It may be useful to extract a list of requirements envisaged by Section 50 of NDPS Act, as enumerated by the Supreme Court in Ranjan Kumar Chadha (supra). The relevant portion is extracted as under:
BAIL APPLN. 864/2024 9 of 18 Officer or Magistrate.
(iv) While informing the right, only two options of either being searched in presence of a Gazetted Officer or Magistrate must be given, who also must be independent and in no way connected to the raiding party.
(v) In case of multiple persons to be searched, each of them has to be individually communicated of their right, and each must exercise or waive the same in their own capacity. Any joint or common communication of this right would be in violation of Section 50.
(vi) Where the right under Section 50 has been exercised, it is the choice of the police officer to decide whether to take the suspect before a Gazetted Officer or Magistrate but an endeavour should be made to take him before the nearest Magistrate.
(vii) Section 50 is applicable only in case of search of person of the suspect under the provisions of the NDPS Act, and would have no application where a search was conducted under any other statute in respect of any offence.
(viii) Where during a search under any statute other than the NDPS Act, a contraband under the NDPS Act also happens to be recovered, the provisions relating to the NDPS Act shall forthwith start applying, although in such a situation Section 50 may not be required to be complied for the reason that search had already been conducted.
(ix) The burden is on the prosecution to establish that the obligation imposed by Section 50 was duly complied with before the search was conducted.
(x) Any incriminating contraband, possession of which is punishable under the NDPS Act and recovered in violation of Section 50 would be inadmissible and cannot be relied upon in the trial by the prosecution, however, it will not vitiate the trial in respect of the same. Any other article that has been recovered may be relied upon in any other independent proceedings.” (emphasis added) BAIL APPLN. 864/2024 10 of 18
12.10 The Supreme Court premised these conclusions on the specific view that post the information provided to the suspect, the choice exercised by accused has to be put in writing and the matter would not rest with just an oral statement of the suspect. In this regard, the following extract from Ranjan Kumar Chadha (supra) is instructive:
BAIL APPLN. 864/2024 11 of 18 by electing to be searched by the empowered officer, such waiver on the part of the suspect should be reduced into writing by the empowered officer. To put it in other words, even if the suspect says that he would not like to be searched before a Gazetted Officer or Magistrate and he would be fine if his search is undertaken by the empowered officer, the matter should not rest with just an oral statement of the suspect. The suspect should be asked to give it in writing duly signed by him in presence of the empowered officer as well as the other officials of the squad that “I was apprised of my right to be searched before a Gazetted Officer or Magistrate in accordance with Section 50 of the NDPS Act, however, I declare on my own free will and volition that I would not like to exercise my right of being searched before a Gazetted Officer or Magistrate and I may be searched by the empowered officer.” This would lend more credence to the compliance of Section 50 of the NDPS Act. In other words, it would impart authenticity, transparency and credit worthiness to the entire proceedings. We clarify that this compliance shall henceforth apply prospectively.”
12.11 There is nothing in the analysis in Ranjan Kumar Chadha (supra) which emphasises on a written notice mentioning ‘nearest’ Gazetted Officer or a Magistrate. In the aforesaid paragraphs, what seems to be the opinion (though the specific issue of the omission of ‘nearest’ was not before the Court), is that basis an oral or written information to the accused about his rights, a no objection/waiver, if any, by the accused has to be taken in writing.
12.12 The endeavour, as stated in para 64(vi) of the requirements enunciated in Ranjan Kumar Chadha (supra) would then require that the endeavour would be made to take suspect to nearest Gazetted Officer or nearest Magistrate. It is also important to note that the Supreme Court in requirement at para 64(iv) indicates BAIL APPLN. 864/2024 12 of 18 that the Gazetted Officer or a Magistrate must be independent and in no way connected to the raiding party. In the opinion of this Court, the requirements laid down in Ranjan Kumar Chadha (supra) are instructive, applicable and serve as useful guideposts for the prosecution agencies to comply. Therefore, in light of the above discussion, the contention of petitioner relating to omission of ‘nearest’ cannot be accepted and would not serve to prima facie absolve him.”
17. It was therefore held that omissions to mention ‘nearest’ in the Section 50 notice was not fatal to the prosecution’s case. This Court reiterates this analysis and opinion in Emeka Prince Lath v State (supra). Delay in deposition of samples
18. A bare perusal of the complaint/chargesheet filed by the NCB notes that the seizure took place on 18th June 2021. Applicant was arrested on 19th June
2021. Subsequently, the address provided by the applicant in Mehrauli was verified. It is stated that verification was complete. The Customer Acquisition Form (CAF) of the mobile no. 8826370241 was obtained, and it was found the same had been issued in the name of ‘Asiulla’, whose address was not confirmed as well.
19. No CCTV was found installed near the spot; however, this verification of the CCTV was conducted on 01st September 2021, almost three months after the alleged seizure in June 2021.
20. As per the Chargesheet on 15th September 2021, the case property was taken out from the Malkhana, and an application under Section 52A of the NDPS Act was made for the drawal of samples. BAIL APPLN. 864/2024 13 of 18
21. After the said proceedings, the samples and test memo were deposited in the Malkhana. One of the samples was sent to the Chemical Examiner, CRCL for testing on 16th September 2021. The report was received on 16th November 2021.
22. As per the Complaint/Chargesheet, there is a three-month delay in submitting an application under Section 52A of the NDPS Act for drawing samples before the Magistrate and sending the material to the CRCL for testing.
23. Even then there is no specific mandate in the statutes regarding the time period when the samples should be sent for testing. It has been stated in Standing Order 1/88, issued by the NCB, that “samples must be dispatched to the laboratory within 72 hours of seizure to avoid any legal objections”.
24. The Coordinate Bench of this Court in Kashif v. Narcotics Control Bureau 2023:DHC:3438, had taken the view that even though no time limit is prescribed in the statute, investigative authorities cannot take limitless time to file a Section 52A application, which should be moved at the earliest without undue delay. A similar view was taken in the Vinod Nagar v. Narcotics Control Bureau 2024:DHC:1244, where there was a three-month delay in filing an application under Section 52A. In Gurpreet Singh v State of NCT of Delhi 2024 (2) SCC 1147, there was 51 days delay in filing the Section 52A application.
25. While reasonable delay can be possibly condoned, considering the 72hour period is only a guideline, delay of about three months in this case is unjustified and unreasonable, and possibly casts doubt on the process employed by the NCB and the sanctity of contraband. Even though these are BAIL APPLN. 864/2024 14 of 18 the issues that may have to be ultimately considered at the stage of trial, it cannot negate the fact that applicant has the opportunity to introduce an element of ‘reasonable doubt’ in the case of the prosecution. Therefore, consequently, a benefit of bail to the applicant, considering the applicant is incarcerated as an undertrial, not yet proven guilty can be countenanced. Prolonged Custody/ Delay in Trial
26. Moreover, the applicant has been incarcerated for more than three years and only one witness has been partially examined. Trial is clearly expected to take a long time to conclude, and the applicant's rights would therefore be violated for ensuring a speedy trial.
27. The quantity of the contraband seized from applicant was just above the commercial quantity and there is no allegation of any prior involvement of the applicant. The Supreme Court has consistently held in several decisions involving the seizures of commercial quantities that prolonged custody can justify bail, regardless of the stringent provisions under Section 37 of the NDPS Act, even in cases involving commercial quantities. Relevant paragraphs of the same have been extracted as under: i. Rabi Prakash v State of Odisha 2023 SCC OnLine SC 1109 where a recovery of 247 kgs of ganja was made and the applicant had been in custody for more than three and a half years, with no criminal antecedents, the Court held as under:
BAIL APPLN. 864/2024 15 of 18 formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.” ii. Dheeraj Kumar Shukla v State of U.P. 2023 SCC OnLine SC 918 where there was a seizure of about 65 kgs of ganja from the car driven by applicant therein (and 92 kgs ganja recovered from the car of the co-accused) the applicant was in custody for about two and a half years, the Supreme Court while granting bail, stated as under:
iii. In Man Mandal & Anr. v State of West Bengal 2023 SCC OnLine SC 1868 where the seizure was commercial in nature and the applicant had been incarcerated for about two years and BAIL APPLN. 864/2024 16 of 18 there was no hope of the trial concluding soon, the Supreme Court while granting bail stated as under:
iv. In Badsha Sk. v State of West Bengal 2023 SCC OnLine SC 1867 where the seizure was of 100 bottles of Phensedyl Cough Syrup (100 ml. each), containing Codeine Phosphate, the applicant had been in custody for about 2 years 4 months and the trial was yet to commence, the Supreme Court while granting bail noted as under:
28. Coordinate Benches of this Court have also considered the principles set out by the Supreme Court, particularly in cases where the quantity seized was commercial and prolonged incarceration served as the basis for granting bail. In Gurpreet Singh v. State of NCT of Delhi 2024 SCC OnLine Del 696, the applicant’s custody period was extended to three and a half years. Similarly, in Ramesh Kumar v. DRI 2024 SCC OnLine Del 5304, the applicant had been in custody for three and a half years. In Gopal Dangi v. State 2024 SCC OnLine Del 4825, the applicant’s custody period had been about two years. These cases collectively underscore the Court’s commitment BAIL APPLN. 864/2024 17 of 18 to balancing the principles of justice with the realities of prolonged custody.
29. Even if there can be no formulaic application of the principle of prolonged custody, the Court has to assess the overall circumstances of the case in order to give the benefit of bail to an accused in prolonged custody.
30. In light of the above, and that the trial in the matter is likely to take some time, and it would be prudent to keep the applicant behind bars for an indefinite period, this Court finds it to be a fit case for grant of bail to the petitioner. Consequently, the applicant is directed to be released on bail on furnishing a personal bond in the sum of Rs. 1,00,000/-with one surety of the like amount subject to the satisfaction of the Trial Court, further subject to the following conditions: i. Applicant will not leave the country without prior permission of the Court. ii. Applicant shall provide permanent address to the Trial Court. The petitioner shall intimate the Court by way of an affidavit and to the IO regarding any change in residential address. iii. Applicant shall appear before the Court as and when the matter is taken up for hearing. iv. Applicant shall join investigation as and when called by the IO concerned. v. Applicant shall provide all mobile numbers to the IO concerned which shall be kept in working condition at all times and shall not switch off or change the mobile number without prior intimation to the IO concerned. vi. Applicant will mark presence physically before the concerned I.O. every Friday at 4PM, and will be not kept waiting for more BAIL APPLN. 864/2024 18 of 18 than an hour. vii. Applicant shall not indulge in any criminal activity and shall not communicate with or come in contact with any of the prosecution witnesses, the complainant/victim or any member of the complainant/victim’s family or tamper with the evidence of the case.
31. Needless to state, any observation touching the merits of the case is purely for the purposes of deciding the question of the grant of bail and shall not be construed as an expression on the merits of the matter.
32. Copy of the judgement be sent to the Jail Superintendent for information and necessary compliance.
33. Accordingly, the bail application is disposed of. Pending applications (if any) are disposed of as infructuous.
34. Judgement be uploaded on the website of this Court.
ANISH DAYAL, J OCTOBER, 2024/RK/tk