- (1.)ABDUL Rashid Dar, petitioner before this court was arrested on 6.6.1998, after being found carrying a contraband drug (Brown sugar). He is shown accused in FIR 130/98 under Section 8/20 N.D.P.S Act, registered at p/s Budgam. The petitioner was refused bail by District and Sessions Judge Budgam, the trial court, under his order dated: 12.9.98. Against this order revision has been failed in this Court. Petitioner has also moved as applicating for bail separately. The grounds put forth for bail are: -
That the allegation of seizure of brown sugar from the person of accused is false and baseless incrimination allegation levelled by the concerned police. The petitioner is stated to have been in custody of the police much earlier to the date when the recovery of contraband is shown/seized from him. After arrest of petitioner and before search it was incumbent upon Investigating Agency to inform the accused that if he so likes he can be brought before a Gazetted Officer or a Magistrate for purpose of search, pursuant to mandatory provisions of Section 50 of N.D.P.S Act. This has not been down. Once the provision of section 50 has not been complied with SIC the prosecution case gets weakened so much so it cannot be presumed that there are reasonable grounds for believing commission of offence by the accused for purpose of bail. The accused was not informed of this right. There is nothing even on record to indicate that the in vesting a ting officer has complied with Section 50 of NDPS Act. Not only so the Investigating Officer, who recovered the substance (Brown Sugar) from the accused himself investigated the case and completed the investigation which has culminated in filing the charge sheet against the accused in court. This aspect of the matter cannot be also lost sight of. Besides, the petitioner is a youth of just 20 years of age with no criminal record or past history of the sort. The order passed by the trial court is not informed of all these aspects and has been passed in routine.

(2.)THE otherside has appeared through M/S M.I. Qadri, Senior Additional Advocate General, M. Amin, and G. Ali Govt. Advocates Mr. G. Ali has addressed arguments in the matter.
(3.)RESPONDENTS have opposed the bail on the ground that even though the investigation agency is not shown to have complied with Section 50 of NDPS Act, same does not entitle the accused to get bail, as the compliance with section 50 of NDPS Act can be established during the trial by the prosecution. The accused has been caught red -handed while carrying the contraband, therefore, he should not be given bail notwithstanding that the challan has been produced in the court.
In AIR 1996 S.C 977,the question which arose before their lordship was whether at the stage of taking cognizance of the offence at pre -trial stage, the Sessions Judge was justified to discharge the accused on the ground of non -compliance with the provisions of Section 50 of NDPS Act. Their lords ships after analysing the law on the subject and examining the matter, answered the question in negative. It was held that the prosecution can during trial, on merits establish and bring on record evidence of compliance with Section 50 of the Act. The accused cannot earn per -se discharge at the threshold of the trial when the matter is yet to be examined on the merits of the case. While laying down this principle, their lordships also reiterated the legal position that compliance with section 50 of the Act is mandatory and the investigating officer is under legal obligation to inform the concerned person of his right, to be searched in presence of a gazetted officer or a Magistrate. If no evidence regarding seasch of prson in presence of gazetted officer or Magistrate is given, the court has to conclude that the person searched was not informed of the protection given to him by law and hold that the possession of illicit articles was not established. The presumption of proper performance of official duty in terms of section 114 (e) of the Evidence Act does not arise in such a case.