Procedural non-compliance with Section 50 NDPS Act is a matter for trial, not bail.

The accused, Rahul Chaudhary, was detained by police on February 27, 2025, near the Agartala Railway track area after attempting to flee

Upon a search conducted by a police party led by Inspector Himadri Sarkar, 50 bottles of Eskuf syrup (containing codeine phosphate) were recovered from the accused's backpack, and 35 bottles were recovered from a co-accused

A charge-sheet was subsequently filed under Sections 21(c), 25, and 29 of the NDPS Act, 1985

The petitioner moved for bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, alleging that the search was illegal due to non-compliance with Section 50 of the NDPS Act, specifically because the Gazetted Officer present was part of the raiding party and the search notice failed to record the accused’s preference regarding the presence of a Magistrate or Gazetted Officer

Whether the alleged non-compliance with the procedural safeguards under Section 50 of the NDPS Act can be adjudicated at the stage of a bail application to bypass the rigors of Section 37

Whether the recovery of contraband from a backpack, rather than the person, necessitates strict adherence to Section 50 of the NDPS Act

The court primarily applied Section 37 of the NDPS Act, which mandates a high threshold for bail involving commercial quantities, requiring the court to be satisfied that the accused is not guilty and unlikely to commit further offences

It relied on the Constitution Bench decision in Vijaysinh Chandubha Jadeja v. State of Gujarat (2011), which established that while Section 50 is mandatory, the question of whether its requirements were met is a matter for trial

The court also cited State of Punjab v. Baldev Singh (1999), affirming that the prosecution must establish due compliance with Section 50 during the trial

Furthermore, it noted the principle from State of Kerala v. Prabhu (2024) that Section 50 generally does not apply if the recovery is from a bag rather than the person

The court evaluated the petitioner’s claim that procedural lapses in the Section 50 notice vitiated the search and seizure

However, the court observed that at the bail stage, it is premature to determine whether Section 50 was strictly applicable or substantially complied with, as these are evidentiary matters to be proven during trial

The court noted that important witnesses, including the searching officer and an independent witness, had not yet been examined

Referencing Union of India v. Md. Nawaz Khan (2021) and State of Tripura v. Mahabul Alam (2023), the court emphasized that procedural violations (such as Section 42 or 50) should be considered during trial rather than at the stage of bail consideration

Given that the recovery involved a commercial quantity of contraband, the statutory rigors of Section 37 remained unsatisfied despite the alleged procedural irregularities

The court found that there were prima facie materials regarding the possession of a commercial quantity of Eskuf syrup

Consequently, the bail application was rejected

The trial court records were ordered to be reconsigned immediately for the continuation of proceedings