Mahendra Kumar Yadav Vs U.O.I Thru. Inspector Cbn Lko.

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HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW

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CRIMINAL MISC. BAIL APPLICATION No. - 8044 of 2025

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Mahendra Kumar Yadav

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.....Applicant(s)

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	Versus
U.O.I Thru. Inspector Cbn Lko.		.....Opposite Party(s)
Counsel for Applicant(s)	: Ram Karan Yadav, Madhukar Singh	Abhishek Yadav,
Counsel for Opposite Party(s)	: S M Singh Royekwar

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Court No. - 13

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HON'BLE SUBHASH VIDYARTHI, J.

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Heard Sri Ram Karan Yadav, the learned counsel for the applicant, Sri S.M. Singh Royekwar, the learned counsel for the respondent-Central Bureau of Narcotics and perused the record.

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The instant application has been filed seeking release of the applicant on bail in Case Crime No. 02/2025, under Sections 8/21/29 NDPS Act, 1985, Police Station CBN, District Lucknow.

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The aforesaid case has been registered on the basis of a recovery memo prepared on 04.04.2025 stating that a team of officials of Central Narcotics Bureau had detained two persons on suspicion of possession of illicit narcotics substance from Hotel Regal Palace, Safedabad, Barabanki. They were taken to District Opium Office, Barabanki where they were searched by a Sub Inspector. 395 grams morphine (along with a polythene in which it was packed) was recovered from a bag being carried by the applicant.

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In the affidavit filed in support of the application, it has been stated that the applicant is innocent, he has been falsely implicated in the present case.

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The respondents have filed a counter affidavit opposing the application annexing therewith the relevant documents. It has been stated in the counter affidavit that the samples were drawn in presence of the Chief Judicial Magistrate and the test report states that the substance is morphine. It has also been stated in the counter affidavit that the applicant was given an option to be searched in presence of a Magistrate or a Gazetted Officer but he declined this offer and he consented for being searched on the spot. The applicant's involvement in two other criminal cases has been disclosed in the

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counter affidavit.

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A rejoinder affidavit has been filed on behalf of the applicant stating that the applicant has been ordered to be released on bail in one of the cases and in other case he has not been received any summon.

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Sri S.M. Singh Royekwar, the learned counsel for the respondent-Central Bureau of Narcotics, has opposed the prayer for bail and he has submitted that the allegations have been established during investigation and a complaint has been filed before the trial court. He has also submitted that the applicant was given the option to be searched in presence of a Magistrate or a Gazetted Officer, but he declined the offer. Therefore, the requirement of Section 50 has been fulfilled in the present case.

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Section 50(1) of the N.D.P.S. Act provides as follows:—

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“ 50. Conditions under which search of persons shall be conducted.—(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

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(2) If such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in sub-section (1).

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(3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

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(4) No female shall be searched by anyone excepting a female.

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(5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest gazetted officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest gazetted officer or Magistrate, proceed to search the person as provided under Section 100 of the Criminal Procedure Code, 1973 (2 of 1974).

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(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.”

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In Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609, the Apex Court has held that :-

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“ 29. In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.

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30. As observed in Presidential Poll, In re, (1974) 2 SCC 33) “13. … It is the duty of the courts to get at the real intention of the legislature by carefully attending [to] the whole scope of the provision to be construed. ‘The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole.’”

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32. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should

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be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well.

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In State of Rajasthan v. Parmanand, (2014) 5 SCC 345, the prosecution case was that a Sub- Inspector had informed the accused persons that they could be searched before the nearest Magistrate or before the nearest gazetted officer or before a Superintendent, who was a part of the raiding party and the accused persons told the officers that they would like to be searched before the Superintendent. The Supreme Court held that:—

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“ This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to the nearest Magistrate or the nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW 10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW 5 J. S. Negi, the Superintendent, who was part of the raiding party. PW 5 J. S. Negi cannot be called an independent officer…”

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The idea behind taking an accused to the nearest Magistrate or the nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. A Sub inspector as in the present case cannot be treated to be an independent officer and, therefore, the search conducted by him does not fulfill the statutory mandate prescribed under Section 50.

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Having considered the aforesaid facts and circumstances of the case and keeping in view the fact that the search has been conducted by a Sub Inspector and it has not been conducted in presence of any Magistrate or any gazetted officer or any other independent officer; that the applicant is languishing in jail since 04.04.2025 whereas the investigation already stands concluded, I am of the view that the aforesaid facts are sufficient for making out a case for enlargement of the applicant on bail.

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Accordingly, this bail application stands allowed .

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Let the applicant- Mahendra Kumar Yadav be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of Magistrate/Court concerned, subject to the following conditions: -

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(i) the applicant shall not tamper with the prosecution evidence;

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(ii) the applicant shall not pressurize the prosecution witnesses;

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(iii) the applicant shall appear on each and every date fixed by the trial court.

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October 6, 2025 Pradeep/-