Police Officer Who Empowered Raiding Team To Conduct Raid Cannot Be Termed As 'Independent Gazetted Officer' U/S 50 NDPS Act: Delhi HC

The Court held that this is sufficient ground to record satisfaction that the accused is not guilty of the offence.

The bench of Justice Vikas Mahajan observed, “there is a non-compliance of Section 50 of the NDPS Act, in as much as the search of the petitioner / accused is not in the presence of an independent Gazetted Officer. This by itself is sufficient ground to record satisfaction that the petitioner / accused is not guilty of the offence charged.”

Advocate Archit Kaushik appeared for the Appellant and APP Ritesh Kumar Bahri appeared for the Respondent.

Brief Facts-

The case of the prosecution is that the FIR was registered on the basis of a secret information that one African person will be coming to supply drugs to some unknown person and if the raid would be conducted he could be apprehended with contraband. Accordingly, a raiding party was constituted and the raid was conducted whereby the accused was apprehended with heroin in commercial quantity.

The present petition was filed seeking regular bail in connection with offences under Section 21(c) of the NDPS Act,1985 and Section 14A of the Foreigners Act.

The Court mentioned the decision of the Delhi HC in Mohd. Jabir vs. State of NCT of Delhi, (2023) SCC OnLine Del 1827 and quoted, “The ACP was the part of the raiding team and it was on his direction the entire investigation was initiated, could not be called an independent officer. He was after all the Gazetted Officer who had proceeded to the place of occurrence after entertaining reasonable belief that the accused persons may be carrying narcotic substance and hence cannot be said to be an independent person before whom the law contemplates a search under NDPS.”

According to the Court, as the quantity of the contraband involved is commercial in nature, therefore, to decide as to whether the twin conditions of Section 37 of the NDPS Act are satisfied, the issue viz. non-compliance of Section 50 of the NDPS Act can be examined and considered for recording its satisfaction about the existence of reasonable grounds for believing that the accused is not guilty of the offence charged.

The Court further mentioned the decision of the Supreme Court in Union of India Vs. Shiv Shanker Kesari, (2007) 7 SCC 798 and quoted, “The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds.”

Finally, the Court enlarged the petitioner on regular bail.

Cause Title: Jeffery Robert v. State of NCT of Delhi

Appearance:

Appellant: Adv. Archit Kaushik and Adv. Bramhansh Bhardwaj

Respondent: APP Ritesh Kumar Bahri

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