AFAAQ KHAN Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) The present application under Sec. 439 of the Code of Criminal Procedure, 1973 ('Cr.P.C.') has been filed on behalf of the applicant, in case arising out of FIR No. 121/2020, registered at Police Station Crime Branch, for offences punishable under Sec. 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act').

(2.) Briefly stated, facts of the case are that an information was received at P.S. Crime Branch, Delhi, on 20/8/2020 regarding a person named Guddu, who used to indulge in illegal dealings of narcotic substance. It was also revealed that Guddu would come near the SDM Office, Nandnagri, to deliver narcotic substance, and if a raid is conducted, he can be apprehended. Accordingly, a trap was laid down on the intervening night of 20/21/8.2020, and at about 12:20 am, the accused persons, including the present applicant/ accused Afaaq Khan were apprehended. After service of notice under Sec. 50 of NDPS Act, narcotic substance i.e. heroine, weighing about 300 grams was recovered from the possession of the applicant, which was delivered to him by co-accused Guddu Khan. After conclusion of investigation, chargesheet was filed in the present case.

(3.) Learned counsel for the present accused/applicant argues that the applicant has been falsely implicated in the case. It is argued that no recovery has been affected from the present applicant/accused. It is argued that there has been no compliance with Sec. 50 of NDPS Act as in the notice under Sec. 50, the word 'nearest' is missing and further the accused had refused to get his search conducted in the presence of any gazetted officer or a magistrate, then the gazetted officer was not required to be called, and in this case, ACP was called on the spot therefore the same in breach of the provisions of Sec. 50. It is further stated that even the factum of recovery of commercial quantity of heroin is doubtful since the recovered substance was sent to FSL after a delay of 08 days. It is also argued that the present applicant has been in judicial custody for more than four years. Thus, it is prayed that the present applicant be released on bail.