Section 50 and 52A objections requiring trial do not satisfy Section 37’s bail standard.

The petitioner was arrested on 10 July 2023 in Crime No. 272 of 2023 and was charged under Sections 8(c), 20(b)(ii)(C), and 29(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”).

The prosecution alleged recovery of 30 kg of ganja, constituting commercial quantity, from two bags carried by the petitioner, although four accused were allegedly involved.

The petitioner sought bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, while the case was pending as C.C. No. 75 of 2024 before the II Additional Special Judge, NDPS Act Cases, Chennai.

The petitioner challenged the alleged joint notice under Section 50 of the NDPS Act, contending that it impaired his right to be searched before a Gazetted Officer or Magistrate.

He also alleged that he did not understand Tamil, that a translated notice was not supplied, and that the procedure under Section 52A was not followed while drawing and forwarding samples.

He further relied on prolonged incarceration and lack of progress in the trial, noting that some co-accused were absconding.

The prosecution opposed bail, submitting that seven witnesses had already been examined and that the delay was attributable to the issuance of non-bailable warrants against the other accused.

1. Whether the alleged joint communication of the right under Section 50 of the NDPS Act invalidated the search and materially weakened the prosecution case so as to justify bail?

2. Whether the alleged non-compliance with the procedure under Section 52A of the NDPS Act constituted a ground for granting bail or vitiated the prosecution proceedings?

3. Whether the petitioner’s contention that it was improbable for him alone to carry 30 kg of ganja, despite the involvement of four accused, warranted bail?

4. Whether the petitioner was entitled to bail on the ground of prolonged incarceration and delay in the trial under Article 21 of the Constitution?

The Court applied Sections 8(c), 20(b)(ii)(C), and 29(1) of the NDPS Act, which criminalise possession, trafficking, and conspiracy relating to cannabis, with Section 20(b)(ii)(C) attracting the stringent consequences applicable to commercial quantity.

Bail was considered in light of Section 37 of the NDPS Act, which requires the Court to be satisfied that there are reasonable grounds for believing that the accused is not guilty and is unlikely to commit an offence while on bail.

Regarding Section 50, the Court relied on the Constitution Bench decision in Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609, holding that the suspect must be informed of the right to be searched before a Gazetted Officer or Magistrate, although no prescribed written form is required and oral communication may suffice.

The Court held that State of Rajasthan v. Parmanand, (2014) 5 SCC 345, could not prevail over the larger Constitution Bench decision.

It also referred to Mehboob Shah v. State of Madhya Pradesh, 2026 INSC 729, for the principle that Section 50 is primarily attracted where the search is of the person and not merely of an object such as a bag.

Under Narcotics Control Bureau v. Kashif, 2024 INSC 1045, deviation from Section 52A procedures may constitute a procedural irregularity but does not, by itself, vitiate the trial.

The Court also recognised that an accused may seek appropriate relief before the trial court, including splitting up the case where the absence of co-accused obstructs the proceedings.

The Court held that the alleged joint format of the Section 50 notice was not, by itself, decisive.

Applying Jadeja, it found that the essential requirement was that the accused be made aware of the statutory right, and the documents produced indicated that the petitioner had been informed of that right.

The Court further observed that, under Mehboob Shah, the applicability of Section 50 could itself be contested at trial because the alleged recovery was from bags rather than directly from the petitioner’s body.

The petitioner’s argument that he could not alone have carried 30 kg of ganja, despite there being four accused, raised a factual defence requiring evidentiary assessment and therefore could not be conclusively determined at the bail stage.

Similarly, the alleged defects in sampling under Section 52A were treated as matters for trial and not as grounds that automatically invalidated the prosecution.

Since the alleged contraband was commercial quantity and was attributed to the petitioner, the Court found that the statutory bar under Section 37 remained applicable and that the petitioner had not established reasonable grounds satisfying its requirements.

On delay, the Court noted that seven witnesses had already been examined and that the interruption was substantially due to the non-appearance of co-accused; the petitioner was therefore left to seek a split-up of the case before the trial court.

It held that the alleged joint Section 50 notice, the disputed Section 52A procedure, the defence regarding the petitioner’s ability to carry the contraband, and the claimed trial delay did not justify bail at that stage.

In view of the recovery of 30 kg of ganja, the commercial quantity involved, and the failure to satisfy Section 37 of the NDPS Act, the bail petition was dismissed.

The petitioner was permitted to pursue appropriate relief before the trial court, including seeking separation of his case from that of the absconding accused.