Page No.# 1/7 GAHC010079702026 2026:GAU-AS:13809 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1085/2026 KAJAL UDDIN SON OF LATE KHARKUD UDDIN @ KHALKU RAHMAN CHOUDHURY, RESIDENT OF VILL- NAYAGRAM, P.O. SUPRAKANDI, P.S. NILAMBAZAR, DIST.SRIBHUMI, ASSAM. VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : MR. M AHMED, MR A HAI Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE PRANJAL DAS ORDER Date : 14.09.2026 Heard Mr. M. Ahmed, learned counsel for the petitioner. Also heard Mr. P.S. Lahkar, learned Additional Public Prosecutor for the State. 2. Invoking 483 BNSS, the petitioner, namely, Kajal Uddin is seeking regular bail in connection with Sribhumi P.S. Case No. 17/2026 under Section 22(C)/29 Page No.# 2/7 of the NDPS Act. 3. The gist of the allegation was that upon an information, a search was conducted at a particular location wherein, three accused persons were apprehended on suspicion and in the presence of independent witnesses, the search operation was carried out, whereupon, 200 nos. of suspected Yaba tablets, three brown packets were recovered, continuing, 200 pouches totalling 6,000 suspected Yaba tablets. The same were seized. Investigation was conducted. The present petitioner was arrested on 16.01.2026 and presently, he is in judicial custody since then. 4. The investigation of the case resulted in a charge-sheet, under Section 22(C)/29 of the NDPS Act. 8(eight) witnesses have been listed in the charge- sheet. The case was registered as Special NDPS Case No. 41/2026 and presently pending at a stage of trial pursuant to framing of charge. 5. Mr. Ahmed, learned counsel submits that one of the grounds the petitioner is seeking bail is infirmity in the procedural requirement of Section 50 of the NDPS Act, which has been held by the settled law as mandatory. 6. The learned counsel, Mr. Ahmed submits that, in this case, though the contraband was allegedly recovered from bag carried by the accused, but a search was conducted, both of the bag and the body of the accused and therefore, Section 50 of the NDPS Act was applicable. 7. In support of his contentions, he cites the decision of State of Rajasthan vs. Parmanand & Anr., reported in (2014) 5 SCC 345 (ii) S.K. Raju @ Abdul Haque @ Jagga vs. State of West Bengal, reported in (2018) 9 SCC 708 (iii) State of Himachal Pradesh vs. Surat Singh, reported in Page No.# 3/7 2026 LiveLaw SC 246 in Criminal Appeal No. 96/2018. 8. He further contends that the requirement of Section 50 of the Act is that the accused has to be informed that it is his right to be searched in front of a gazetted officer or Magistrate and that in this case, he was not so informed about his right. To buttress his contention, he refers to the decision of Ranjan Kumar Chadha vs. State of Himachal Pradesh, reported in (2023) SCC OnLine SC 1262. The learned counsel also submits that the accused was subsequently searched before the DSP of Police as the gazetted officer, though he was part of the search operations team and that the same vitiated the search. 9. On the other hand, the learned Additional Public Prosecutor submits that the case is of a serious nature and the accused was duly informed and asked whether he wants to be searched before gazetted officer or magistrate. 10. Referring to the decision of State of H.P. vs. Pawan Kumar, reported in (2005) 4 SCC 350, the learned Additional Public Prosecutor contends that in the said decision, it was held that Section 50 would have no application on the facts of that case as opium was allegedly recovered from the bag carried by the accused. He also refers to the leading authority on Section 50 – State of Punjab vs. Baldev Singh, reported in (1999) 6 SCC 172 and contends that it is stated in the said decision that the informing of the right to be searched before magistrate or gazetted officer does not even have to be in writing. 11. I have perused the materials and given my anxious consideration to the submissions. I have perused the relevant portions of the scanned TCR including the seizure list. Page No.# 4/7 12. Regarding circumstances of seizure, it is stated that the contraband was kept concealed inside the orange colour polythene bag and another black colour polythene bag and same was recovered from the possession of the accused persons including the petitioner. Thus, prima facie, it is clear that the recovery was from the bags purportedly carried by the accused person. 13. Copy of the notice under 50 of the NDPS Act is available in the scanned TCR. It is stated inter alia that – if you so require, such search shall be conducted in the presence of nearest gazetted officer or magistrate. Thus, it is clear from the materials that though the contraband was allegedly recovered from the bag purportedly carried by the accused persons, the body search of the accused persons including the petitioner was also conducted. 14. Upon perusing the cited decisions, I find that in Para 15 of Parmanand & Anr (supra), it was held that if a bag carried by the accused is searched and his person is also searched, section 50 of the NDPS Act will have application. Similarly, in S.K. Raju (supra), it was stated in Para 22 that as the search was not only of the bag but also the appellant's person, section 50 would be attracted. 15. Reference has to be made to Pawan Kumar (supra) rendered by a 3- Judge Bench of Hon’ble Supreme Court. In that case, one Pawan Kumar was found to be in suspicious situation carrying a bag and search of the said accused and the bag carried by him was conducted and 360 grams of opium was wrapped in polythene inside the bag. Originally, when the appeal went up to the Hon’ble Apex Court, it was heard by two learned Judges, between whom there was a disagreement as to whether section 50 would be applicable. Accordingly, the matter was referred to a larger bench and the 3-Judge Bench Page No.# 5/7 rendered the decision on 08.04.2005 being – State of H.P. vs. Pawan Kumar, reported in (2005) 4 SCC 350. The court after an elaborate discussion held in paragraph 27, that section 50 of the Act can have no application on the facts and circumstances of that case and opium was allegedly recovered from the bag, which was being carried by the accused. The said Para 27 is reproduced herein below – “27. Coming to the merits of the appeal, the High Court allowed the appeal on the finding that the report of the Chemical Examiner had to be excluded and that there was non-compliance with Section 50 of the Act. The learned Judges of this Court, who heard the appeal earlier, have recorded a unanimous opinion that the report of the Chemical Examiner was admissible in evidence and could not be excluded. In view of the discussion made earlier, Section 50 of the Act can have no application on the facts and circumstances of the present case as opium was allegedly recovered from the bag, which was being carried by the accused. The High Court did not examine the testimony of the witnesses and other evidence on merits. Accordingly, the matter has to be remitted back to the High Court for a fresh hearing of the appeal.” (emphasis added) 16. Thus, the law laid down by the larger bench in Pawan Kumar (supra) regarding non-applicability of section 50 in such a situation has to be followed. 17. Though Ranjan Kumar Chadha (supra) was a two-judge bench judgment of the Hon’ble Apex Court, it also dealt with this issue and concurred with the principle laid down in Pawan Kumar (supra). Relevant paragraph 126 of Ranjan Kumar Chadha (supra) may be reproduced herein below – ”126. As such, there is no direct conflict between SK. Raju (supra) and Baljinder Singh (supra). It is pertinent to note that in SK. Raju (supra) the Page No.# 6/7 contraband was recovered from the bag which the accused was carrying, whereas in Baljinder Singh (supra) the contraband was recovered from the vehicle. This makes a lot of difference even while applying the concept of any object being “inextricably linked to the person”. Parmanand (supra) relied upon the judgment in Dilip (supra) while taking the view that if both, the person of the accused as well as the bag is searched and the contraband is ultimately recovered from the bag, then it is as good as the search of a person and, therefore, Section 50 would be applicable. However, it is pertinent to note that Dilip (supra) has not taken into consideration Pawan Kumar (supra) which is of a larger Bench. It is also pertinent to note that although in Parmanand (supra) the Court looked into Pawan Kumar (supra), yet ultimately it followed Dilip (supra) and took the view that if the bag carried by the accused is searched and his person is also searched, Section 50 of the NDPS Act will have application. This is something travelling beyond what has been stated by the large Bench in Pawan Kumar (supra). Baljinder Singh (supra), on the other hand, says that Dilip (supra) does not lay down a good law.” (emphasis added) 18. In an instant case, both the person of the accused as well as the bag was searched and an alleged contraband was found from the bag. In this situation, in terms of the law laid down in Baldev Singh (supra), Pawan Kumar (supra) and Ranjan Kumar Chadha (supra) – it has to be held that there would be no applicability of section 50 of the NDPS Act. 19. I have perused the relevant portions of the scanned TCR. 20. Investigation has lent support to the allegations about recovery of the Page No.# 7/7 suspected drugs from the possession of the petitioner. The seizure witnesses have supported the seizure of the contraband from the accused person. Witnesses have stated that they were initially found loitering with a polythene bag, and upon being searched, the contraband was recovered. 21. In view of the materials revealed by the investigation, lending support to the basic allegations of the FIR and the corroborative testimony of the witnesses, including the seizure witnesses, and together with other documents such as inventory, seizure list, etc. – it is not possible to hold on the basis of these materials that there are reasonable grounds for believing that the accused person is not guilty of the offences under the NDPS Act alleged to have been committed. 22. That being so, the statutory bar under section 37 would be attracted, and at this stage the Court will be statutorily prohibited from granting bail to the accused. Accordingly, in such view of the matter, the instant bail petition stands rejected at this stage and disposed of. JUDGE Comparing Assistant