Baharul Islam Vs the State of Assam

is seeking regular bail in connection with Laharighat P.S. Case No. 59 of 2026 registered under Section 21(b)/29 of the NDPS Act, 1985. He was arrested on 23.05.2026 and first remanded on 24.05.2026.

¶19

3. The gist of the allegation in the FIR dated 23.05.2026 is that he was found to be in possession of 10.44 grams of suspected heroin along with soap boxes.

¶20

4. Mr. S.K. Poddar, learned counsel for the petitioner submits that apart from the length of detention, he also contends that there is infraction of the provisions of Section 50 of the NDPS Act, which is mandatory in nature. It is submitted that the suspected contraband was found upon personal search of the accused and therefore Section 50 was applicable. And in this respect, drawing attention to the copy of the notice regarding Section 50 served upon the accused, it is submitted that he was not informed about his right to be searched before nearest gazetted officer or magistrate. The learned counsel refers to a recent decision of the Honourable Supreme Court in the case of State of Himachal Pradesh vs. Surat Singh reported in 2026 Live Law (SC) 246 . It is submitted that in the said decision that the Honourable Apex Court applying the principle laid down in Suresh vs. State of Madhya Pradesh held that the mandate of Section 50 required the accused to be informed about his right to be searched before magistrate or gazetted officer.

¶21

5. The case diary he has called for has been received.

¶22

6. The learned Additional PP opposing the case submits that the seizure witnesses have supported the seizure and incriminating materials have been found against the petitioner. With regard to the notice, he submits that it is not a case of being orally informed about the option of search before magistrate or gazetted

¶23

Page No.# 3/5

¶24

officer and that the notice given in the instant case would meet the mandate of law.

¶25

7. I have given my consideration to the materials available at this stage and also the rival submissions. In the notice, it is stated that - if you so require, such search should be conducted in presence of the nearest gazetted officer or magistrate. I next proceed to reproduce paragraph 16 of the decision in Suresh and others vs. State of Madhya Pradesh reported in (2013) 1 SCC 550 , reproduced herein below:

¶26

“16.The above panchnama indicates that the appellants were merely asked to give their consent for search by the police party and not apprised of their legal right provided under Section 50 of the NDPS Act to refuse/to allow the police party to take their search and opt for being searched before the gazetted officer or by the Magistrate. In other words, a reading of the panchnama makes it clear that the appellants were not apprised about their right to be searched before a gazetted officer or a Magistrate but consent was sought for their personal search. Merely asking them as to whether they would offer their personal search to him i.e. the police officer or to gazetted officer may not satisfy the protection afforded under Section 50 of the NDPS Act as interpreted in Baldev Singh’s case.”

¶27

8. Thus, it is clear that the mandate of Section 50 necessitates informing the accused about his right to be searched before a gazetted officer or nearest magistrate. In the instant case, the accused was only given the choice but not informed about his right regarding the same and therefore, the aforesaid nature of the notice would not meet the requirement of law crystallized by the decision of the Honourable Supreme Court.

¶28

9. Therefore, considering that aspect of the matter and also the progress of

¶29

Page No.# 4/5

¶30

investigation and length of detention I allow this bail petition and accordingly, the accused/petitioner, namely, Baharul Islam is hereby allowed to go on bail of Rs. 50,000/- with one surety of the like amount to the satisfaction of the learned Special Judge, Morigaon and subject to the conditions:

¶31