JOHRI Vs. STATE

JUDGEMENT

(1.) The present bail application has been filed under Sec. 439 Cr.P.C. read with Sec. 482 Cr.P.C. on behalf of the applicant seeking regular bail in FIR No. 38/2016 registered under Ss. 21/29/61/85 of the NDPS Act at P.S. Special Cell (SB), Delhi.

(2.) Learned counsel for the applicant has contended that the applicant is in custody since 26.06.2016 and the charge sheet having been filed, he is no longer required for any investigation. She further submits that though the recovery of contraband is alleged to have taken place from the polythene bag held by the applicant, reading of the FIR would show that after searching the polythene bag, personal search of the applicant was also conducted and hence, Sec. 50 of the NDPS Act is applicable. It is also contended that there was violation in the present case of mandatory provision of Sec. 50 of the NDPS Act, as the applicant's denial to be searched before a Magistrate or Gazetted Officer was not recorded. In support of her submissions, learned counsel placed reliance on the decisions of the Supreme Court in State of Rajasthan v. Parmanand and Another reported as (2014) 5 SCC 345 and Dilip and Another v. State of M.P. reported as (2007) 1 SCC 450.

(3.) Ms. Neelam Sharma, learned APP for the State, on the other hand, has vehemently opposed the bail application. She submits that the recovery effected from the applicant relates to 'commercial quantity' of heroin and thus, the bar under Sec. 37 of the NDPS Act is applicable to the present case. She further submits that as the stated contraband was recovered from a bag and not from the body of the applicant, Sec. 50 of the NDPS Act is not applicable. She also submits that from the Reply given by the applicant to the notice issued to him under Sec. 50 of the NDPS Act, it can be inferred that he had waived off his right to be searched before a Magistrate/Gazetted Officer.