Case Title:
Mamta vs State of Delhi
Date:
28th September, 2021
Bench:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
Parties:
Petitioner – Mamta
Respondent – State of Delhi
Subject
An application was filed by the applicant seeking regular bail for the offence registered under Section 439 of the CrPC read along with Section 37 of the NDPS Act.
Important Provisions
Section 439 of the CrPC –Special powers of High Court or Court of Session regarding bail.
Section 37 of the NDPS Act –Offences to be cognizable and non-bailable.
Section 50 of the NDPS Act – Conditions under which search of persons shall be conducted.
Overview
- A secret information was received stating that the applicant was involved in selling of drugs.
- The applicant was then identified while getting down from an auto by a secret informer and the raid team formed arrested her.
- The applicant was given a notice under Section 50 of the NDPS Act and was searched.
- A search was conducted by W/ct. Rekha.
- 50.75 grams of smack was recovered from the possession of the applicant.
Issues raised
- Whether a female officer was required to search a female suspect in a case relating to the NDPS Act?
Advancements made by the Applicant
- The learned counsel for the applicant argued that the provisions mentioned under Section 50 of the NDPS Act were not strictly complied with.
- The search conducted was in complete contravention of Section 50(4) of the NDPS Act.
- The rigors of Section 37 of the NDPS Act were not applicable to the case as the recovered drugs were of intermediate quantity in nature.
- The applicant was in judicial custody since 17/11/2020 and the applicant was no longer required for the purpose of investigation.
Advancements made by the Respondent
- The learned counsel for the respondent argued that the search proceedings were conducted in the presence of public witnesses.
- The seized material was sent to the FSL for examination and was found that it contained various drugs such as Diacetylmorphine (22.6%)', 'Acetyl codeine', '6-Monoacetylmorphine' and 'Trimethoprim.
- It was argued that there was no violation of Section 50(4) of the NDPS Act and due to the time constraint, the raiding team had to rush and no female police officer could join the team.
- The learned counsel relied upon the decision of the Supreme Court in Sajan Abraham v. State of Kerala reported as (2001) 6 SCC 692 as well as the decision of a Single Bench of the Kerala High Court in Amina v. Circle Inspector of Police reported as 2001 SCC OnLine Ker266in support of her submissions.
Judgment Analysis
- The Court observed that under Section 50(4) of the NDPS Act it was clearly stated that no female shall be searched by anyone except a female.
- The Supreme Court had already declared that strict compliance with section 50 of the NDPS Act was mandatory. The provisions of Section 50 cannot be relaxed on the ground that no female officers were available at the time of search.
- Sub-section (4) of Section 50 of the NDPS Act was an addition to the other conditions mentioned therein. Thereby, while conducting a search on a female suspect it should be by an authorised female officer.
- Under Section 41(2) of the NDPS Act it clearly stated that only an authorised officer can carry out an arrest. A police constable was not an authorised officer.
- In the case of Chhotu v. State of Maharashtra reported as 1994 SCC OnLine Bom 331, it was stated that for an offence punishable under NDPS Act a search of an accused conducted by a police constable would amount to total non-compliance with the provisions of the Act.
Conclusion
The Court concluded by directing the applicant to be released on regular bail and stating that strict compliance with Section 50 of the NDPS Act was mandatory and that only a female officer must search a female suspect.
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