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Delhi High Court
Shahida vs The State N.C.T. Of Delhi on 14 August, 2025
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 31.07.2025
Date of Decision:14.08.2025
+ BAIL APPLN. 180/2025
SHAHIDA .....Petitioner
Through: Mr. Arvind Vats and
Ms. Yashika, Advs.
versus
THE STATE N.C.T. OF DELHI .....Respondent
Through: Ms. Meenakshi Dahiya, APP
for State
CORAM:
HON'BLE MR. JUSTICE AJAY DIGPAUL
JUDGMENT
%
1. The present bail application originates from the registration of
FIR No. 174/2024, Police Station Narela, under Sections 21/25/29 of
the Narcotic Drugs and Psychotropic Substances Act, 19851. The FIR
was registered on 29.02.2024, upon receipt of specific intelligence
received at approximately 12:55 PM by ASI Raj Kumar of the
Narcotics Cell, Outer North District, Delhi, regarding the alleged
transportation of heroin by two individuals, Amit and Ranjeet, via an
e-rickshaw near Satyawadi Raja Harishchandra Hospital, Narela2.
Acting on this information, a raiding team was constituted, and
surveillance was laid at the identified spot.
2. At about 02:35 PM on the same date, a red e-rickshaw bearing
registration DL 10ER 4686 was intercepted, carrying the named
1
Hereinafter “NDPS Act”
2
Hereinafter “SRHC Hospital”
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individuals. Upon interception and following procedural formalities, a
search was conducted, allegedly leading to the recovery of 300 grams
of heroin from the accused. The applicant/petitioner, Shahida, was not
present at the scene of the initial apprehension and was not named in
the FIR or disclosed in the secret information. The case against her
appears to stem from subsequent investigation and purported
conspiracy under Sections 21/25/29 of the NDPS Act.
3. The petitioner was arrested and taken into judicial custody on
02.03.2024.
4. Subsequently, the petitioner moved an application under
Section 167(2) of the Code of Criminal Procedure, 19733 on the
ground that the alleged recovery of 30 grams of heroin (intermediate
quantity) warranted the filing of a chargesheet within 60 days, which
had not been complied with. This bail application was dismissed by
the learned Trial Court on 20.06.2024.
5. Thereafter, the petitioner preferred a petition before the High
Court under Section 167(2) of the CrPC. However, it has been stated
by the petitioner that during its pendency, the prosecution had filed the
chargesheet. Thus, the petitioner withdrew the said petition with
liberty to seek regular bail under Section 439 of the CrPC.
Subsequently, she approached the learned Special Judge, NDPS,
North District, Rohini Courts, which resulted in the dismissal of her
bail application vide order dated 05.12.2024.
3
Hereinafter “CrPC”
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6. The instant bail application has been moved before this Court
under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 20234,
seeking regular bail.
Submissions of petitioner
7. Learned counsel for the petitioner contends that the petitioner
has been falsely implicated in the instant case and that she is neither
named in the FIR dated nor apprehended from the spot at the time of
the alleged recovery. The petitioner is alleged to have been roped in
solely on the basis of a purported conspiracy under Section 29 of the
NDPS Act, without any cogent, direct, or reliable evidence connecting
her to the substantive offence under Section 21 or Section 25.
8. The petitioner has submitted that the allegations against her,
even if taken at face value, do not attract the rigor of Section 37 of the
NDPS Act as the quantity allegedly recovered is 30 grams, which falls
within the intermediate category and not the commercial threshold. It
is argued that the procedural compliance, especially with respect to
Section 50 of the NDPS Act, was wholly deficient.
9. The personal search of the petitioner was allegedly conducted
by one W/HC Sheenu, who, it is contended, was neither an
empowered officer nor authorized to conduct the search under
Sections 41 and 42 of the NDPS Act.
10. Further, the mandatory notice under Section 50 NDPS Act
offering the petitioner the option of being searched in the presence of
4
Hereinafter “BNSS”
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a Magistrate or Gazetted Officer was not duly served, rendering the
search and subsequent recovery vitiated in law.
11. Reliance has been placed on a catena of judgments including
State of Delhi v. Ram Avtar5, Emeka Emmanuel v. State6 and Mohd.
Rahis Khan v. State7, to fortify the contention that non-compliance
with Section 50 renders the alleged recovery inadmissible. In addition,
in Mamta v. State of Delhi8, it was observed that a search conducted
by a constable or a person below the rank of empowered officer is
patently illegal. The petitioner further relies on Ikram v. State of NCT
of Delhi9, wherein the High Court granted bail on similar grounds of
defective notice under Section 50.
12. The petitioner has also placed on record her medical condition.
A medical report dated 03.12.2024 issued by the Jail Superintendent
discloses that she is suffering from serious ophthalmic complications
requiring surgical intervention. Given her advanced age and frailty,
prolonged incarceration would be highly prejudicial to her health. It is
further submitted that the petitioner has no prior criminal antecedents
and is a permanent resident of Delhi. She undertakes not to tamper
with evidence or influence witnesses and is willing to abide by all
terms and conditions imposed by this Court.
13. In view of the above, it is prayed that the petitioner may be
released on regular bail, as the trial is likely to take a considerable
time and her continued incarceration serves no further purpose,
5
(2011) 12 SCC 207
6
2022 SCC OnLine Del 4493
7
2013 SCC OnLine Del 4752
8
2021 SCC OnLine Del 4570
9
Bail Appln. No. 3707/2022
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especially when the investigation has concluded and the chargesheet
stands filed.
Submissions of respondent
14. In rival submissions, learned APP has vehemently opposed the
instant bail application thereby submitting that the allegations against
her are serious in nature and pertain to an organized network engaged
in the illicit trafficking of narcotic substances. It is argued that the
petitioner is not merely an accessory but an active conspirator under
Section 29 of the NDPS Act in the offence involving recovery of 300
grams of heroin from co-accused Ranjeet and Amit.
15. As per the status report, the investigation reveals that the
petitioner’s name surfaced during custodial interrogation of the co-
accused Ranjeet and analysis of Call Detail Records10 which indicated
repeated telephonic conversations between the petitioner and the co-
accused. Stating the same, learned APP contends that the CDRs
corroborate that the petitioner along with the co-accused persons was
instrumental in arranging the supply chain and facilitating the
transportation of heroin, thereby satisfying the elements of criminal
conspiracy under the NDPS Act.
16. It is also argued that the recovery and search were conducted
strictly in accordance with law, and that due compliance with Sections
42 and 50 of the NDPS Act was ensured. It is asserted that offences
under NDPS are of a grave nature affecting the social fabric, and
granting bail at this juncture would severely prejudice the ongoing
prosecution, as the petitioner may attempt to influence witnesses or
10
Hereinafter “CDRs”
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tamper with evidence. It is also brought to the notice of this Court that
her bail application has already been rejected by the learned Special
Judge, NDPS, Rohini Courts, Delhi, vide order dated 05.12.2024.
17. It is further submitted that the petitioner is a habitual offender
(FIR No. 157/2019 under the NDPS Act and FIR No. 686/16 under
the Indian Penal Code, 1860) and it is also pertinent to state here that
even the petitioner’s other family members were previously involved
in several cases under the NDPS Act. Therefore, in view of the
unclean criminal antecedents and above submissions, it is prayed that
the present bail application may be dismissed.
Analysis
18. Heard learned counsel for the parties and perused the material
available on record.
Chargesheet and role of the petitioner
19. A perusal of the chargesheet reveals that the petitioner Shahida
was not named in the FIR dated 29.02.2024, which pertained to the
interception of an e-rickshaw near SRHC Hospital, Narela, and the
alleged recovery of 300 grams of heroin from the possession of
accused persons namely Ranjeet and Amit.
20. The name of petitioner Shahida surfaced during further
investigation, particularly through the disclosure statement of co-
accused Ranjeet dated 01.03.2024, wherein he alleged that the heroin
was supplied and procured at the instance of Shahida, and that she
played a role in the sale/purchase, procurement and routing of the
contraband. This was further corroborated by the CDRs which
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established repeated telephonic communication between Shahida and
the co-accused Ranjeet on the dates surrounding the incident. It is
noted that as per the status report, a total of 56 calls were made
between both the named accused persons from 10.01.2024 to
27.02.2024.
21. In pursuance of this, the police obtained permission for search
of her residence, whereupon, reaching to her place, along with the
raiding party and co-accused persons, Shahida was duly informed of
the search and of the case registered under the NDPS Act, prior to any
recovery attempt, as reflected in the chargesheet.
22. It is noteworthy that this specific factual assertion has not been
denied by the applicant.
23. It is also evident from the chargesheet, that it was recorded in
DD Entry No. 07 at 08:25 PM on 01.03.2024 by SI Narender to
Inspector Ravi Kumar that prior compliance with Section 42 NDPS
Act was undertaken before entering her premises.
24. Further, after searching her premises and recovery of 30 gms of
heroin from the said premises on the even date, Shahida was arrested
on 02.03.2024 and remained in judicial custody since then.
25. The chargesheet has since been filed. The status report filed
also notes that the applicant is a repeat offender, with prior
involvement in offences under the NDPS Act. Additionally, it is
alleged that her close family members have also been involved in
similar cases, which fact has also been disclosed by the petitioner in
her disclosure statement.
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26. The petitioner has also relied upon a medical report dated
03.12.2024, issued by the Jail Superintendent, asserting deteriorating
ophthalmic health conditions requiring surgical care.
27. Now adverting to the adjudication of the matter in hand.
28. The petitioner’s primary contention to seek bail is with regard
to the non-compliance of Sections 42 and 50 of the NDPS Act.
29. Section 42 of the NDPS Act deals with the procedure of arrest,
search and seizure, to be followed upon receipt of information
regarding the commission of an offence.
30. In the present case, the record reflects that SI Narender made
DD Entry No. 07 at 8:25 PM on 01.03.2024, recording the
information received by him and informing Inspector Ravi Kumar of
the intended search of Shahida’s premises. The raid was thereafter
conducted in the presence of W/HC Jyoti and the recovery of 30 grams
of heroin was affected from the petitioner’s premises.
31. The petitioner contends that her personal search was conducted
by W/HC Sheenu, who is not empowered under Section 42 of the Act.
32. Under Section 42(1), only officers superior in rank to a peon,
sepoy, or constable are authorized to conduct search and seizure
operations.
33. The chargesheet unequivocally records that the search and
arrest of the petitioner was undertaken in the presence and under
instructions of SI Narender, and by W/HC Jyoti, who holds the rank of
Woman Head Constable, well above the rank of peon, sepoy, or
constable. Thus, the arrest and search of the petitioner in the instant
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case was undertaken in light of the provisions of Section 42 of the
NDPS Act.
34. In Mamta (Supra), relied upon by the petitioner, the High Court
held that searches by those below the rank of Head Constable are
impermissible. No such infraction arises here. Hence, the plea of
“unauthorized search” is founded on an incorrect assertion of fact and
law. The search was carried out legally under the NDPS Act.
35. Thus, it is made out that there is prima facie compliance with
Section 42 of the NDPS Act as the prosecution has, in fact, complied
with the provisions of Section 42 of the NDPS Act by recording the
prior information and sending it to the superior officer, as is evident
from the chargesheet and status report. Therefore, the petitioner’s
contention regarding non-compliance of Section 42 does not survive
as a ground to seek bail.
36. Regarding the petitioner’s second limb of arguments, Section
50 is applicable to personal search of a person, and mandates that the
person must be informed of her right to be searched in the presence of
a Magistrate or Gazetted Officer.
37. The law regarding applicability and compliance of Section 50
of the NDPS Act has been widely discussed in a catena of judgments.
Although the objective and purpose of the said provisions do not carry
any ambiguity, however, in this regard, reference can be made to the
judgment of the Constitution of Bench of the Hon’ble Supreme Court
passed in State of Punjab v. Baldev Singh11.
11
(1999) 6 SCC 172
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38. Perusal of the relevant paragraphs of Baldev Singh (Supra)
states that before conducting search of the person of a suspect, the
authorized/empowered officer has an obligation to inform the suspect
that he has the right to require his search being conducted in the
presence of a gazette officer or a Magistrate. The failure to inform
would render the search illegal, and conviction and sentence of the
accused based solely on recovery made during that search would be
vitiated.
39. While non-compliance with Section 50 does not necessarily
vitiate the entire trial, it does vitiate the conviction and sentence if
based solely on the recovery made during such illegal search. This is
because it undermines the fairness of the trial. An illicit article seized
from the person of the accused during a search, which violates the
mandate of Section 50 cannot be used as admissible evidence of
unlawful possession under the NDPS Act. However, other material
recovered during such a search may be used as relevant and legally
admissible in the trial. The relevant paragraphs of Baldev Singh
(Supra), necessary to understand the scope and context, are as under:
“..32. However, the question whether the provisions of Section 50
are mandatory or directory and, if mandatory, to what extent and
the consequences of non-compliance with it does not strictly
speaking arise in the context in which the protection has been
incorporated in Section 50 for the benefit of the person intended to
be searched. Therefore, without expressing any opinion as to
whether the provisions of Section 50 are mandatory or not, but
bearing in mind the purpose for which the safeguard has been
made, we hold that the provisions of Section 50 of the Act
implicitly make it imperative and obligatory and cast a duty of the
investigating officer (empowered officer) to ensure that search of
the person (suspect) concerned is conducted in the manner
prescribed by Section 50, by intimating to the person concerned
about the existence of his right, that if he so requires, he shall be
searched before a gazetted officer or a Magistrate and in case he so
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opts, failure to conduct his search before a gazetted officer or a
Magistrate would cause prejudice to the accused and render the
recovery of the illicit article suspect and vitiate the conviction and
sentence of the accused, where the conviction has been
recorded only on the basis of the possession of the illicit article,
recovered during a search conducted in violation of the provisions
of Section 50 of the Act. The omission may not vitiate the trial as
such, but because of the inherent prejudice which would be caused
to an accused by the omission to be informed of the existence of
his right, it would render his conviction and sentence
unsustainable. The protection provided in the section to an accused
to be intimated that he has the right to have his personal search
conducted before a gazetted officer or a Magistrate, if he so
requires, is sacrosanct and indefeasible — it cannot be disregarded
by the prosecution except at its own peril.
33. The question whether or not the safeguards provided in Section
50 were observed would have, however, to be determined by the
court on the basis of the evidence led at the trial and the finding on
that issue, one way or the other, would be relevant for recording an
order of conviction or acquittal. Without giving an opportunity to
the prosecution to establish at the trial that the provisions of
Section 50 and, particularly, the safeguards provided in that section
were complied with, it would not be advisable to cut short a
criminal trial.
57. On the basis of the reasoning and discussion above, the
following conclusions arise:
(1) That when an empowered officer or a duly authorised
officer acting on prior information is about to search a
person, it is imperative for him to inform the person
concerned of his right under sub-section (1) of Section 50
of being taken to the nearest gazetted officer or the nearest
Magistrate for making the search. However, such
information may not necessarily be in writing.
(2) That failure to inform the person concerned about the
existence of his right to be searched before a gazetted
officer or a Magistrate would cause prejudice to an accused.
(3) That a search made by an empowered officer, on prior
information, without informing the person of his right that
if he so requires, he shall be taken before a gazetted officer
or a Magistrate for search and in case he so opts, failure to
conduct his search before a gazetted officer or a Magistrate,
may not vitiate the trial but would render the recovery of
the illicit article suspect and vitiate the conviction and
sentence of an accused, where the conviction has been
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recorded only on the basis of the possession of the illicit
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article, recovered from his person, during a search
conducted in violation of the provisions of Section 50 of the
Act.
(4) That there is indeed need to protect society from
criminals. The societal intent in safety will suffer if persons
who commit crimes are let off because the evidence against
them is to be treated as if it does not exist. The answer,
therefore, is that the investigating agency must follow the
procedure as envisaged by the statute scrupulously and the
failure to do so must be viewed by the higher authorities
seriously inviting action against the official concerned so
that the laxity on the part of the investigating authority is
curbed. In every case the end result is important but the
means to achieve it must remain above board. The remedy
cannot be worse than the disease itself. The legitimacy of
the judicial process may come under a cloud if the court is
seen to condone acts of lawlessness conducted by the
investigating agency during search operations and may also
undermine respect for the law and may have the effect of
unconscionably compromising the administration of justice.
That cannot be permitted. An accused is entitled to a fair
trial. A conviction resulting from an unfair trial is contrary
to our concept of justice. The use of evidence collected in
breach of the safeguards provided by Section 50 at the trial,
would render the trial unfair.
(5) That whether or not the safeguards provided in Section
50 have been duly observed would have to be determined
by the court on the basis of the evidence led at the trial.
Finding on that issue, one way or the other, would be
relevant for recording an order of conviction or acquittal.
Without giving an opportunity to the prosecution to
establish, at the trial, that the provisions of Section 50 and,
particularly, the safeguards provided therein were duly
complied with, it would not be permissible to cut short a
criminal trial.
(6) That in the context in which the protection has been
incorporated in Section 50 for the benefit of the person
intended to be searched, we do not express any opinion
whether the provisions of Section 50 are mandatory or
directory, but hold that failure to inform the person
concerned of his right as emanating from sub-section (1) of
Section 50, may render the recovery of the contraband
suspect and the conviction and sentence of an accused bad
and unsustainable in law.
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(7) That an illicit article seized from the person of an
accused during search conducted in violation of the
safeguards provided in Section 50 of the Act cannot be used
as evidence of proof of unlawful possession of the
contraband on the accused though any other material
recovered during that search may be relied upon by the
prosecution, in other proceedings, against an accused,
notwithstanding the recovery of that material during an
illegal search….”
40. However, it is prudent to note here that the aforesaid provision
of Section 50 applies only in the case of search of the person of
suspect, pursuant to the apprehension of recovery of narcotics under
the NDPS Act stand not to search of premises. In Vijaysinh
Chandubha Jadeja v. State of Gujarat12, the Hon’ble Supreme Court
reiterated the mandatory nature of informing the accused of the right,
but again within the context of personal search. Similar observation
was also made in a recent judgment of the Hon’ble Supreme Court in
State of Kerala v. Prabhu13, which states as under:
“7. Thus, it is evident that the exposition of law on the question
regarding the requirement of compliance with Section 50 of
the NDPS Act is no more res integra and this Court in
unambiguous term held that if the recovery was not from the
person and whereas from a bag carried by him, the procedure
formalities prescribed under Section 50 of the NDPS Act was not
required to be complied with. It is to be noted that in the case on
hand also the evidence indisputably established that the recovery of
the contraband was from the bag which was being carried by the
respondent.”
41. With respect to the facts of the instant mater, it is observed that
the petitioner was not subjected to a personal search, yielding recovery
of any narcotics, rather, the recovery of 30 grams of Heroin was from
her residential premises, and not her person.
12
(2011) 1 SCC 609
13
2024 SCC OnLine SC 5300
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42. The search of her person was conducted post-arrest, in a routine
manner, and a mobile phone was recovered, which, later on, during
investigation, as per the chargesheet, corroborates the fact that she was
indeed in regular contact with the co-accused persons namely Ranjeet,
Amit and Zakir. Even though the same is actually a matter of trial, yet,
at this stage, while deciding bail, this Court does not find any reason
to accept the applicability of Section 50.
43. The chargesheet and status report reveal that due permission
was sought before the search was conducted. The applicant’s
contention that she was not informed about her rights is belied by the
record, which shows that she was duly informed about the case and
the impending search beforehand, a fact which has not been denied by
the petitioner.
44. Furthermore, recovery of 30 gms of heroin, from petitioner’s
premises, has to stand trial to prove whether it belonged to Shahida,
and recovery of the said contraband, as such, is not affected by any
illegality due to the alleged non-compliance of Sections 42 and 50 of
the NDPS Act. Hence, the contention regarding non-compliance with
Section 50 of the NDPS Act is untenable and devoid of merit.
45. The reliance placed by the defence on Mohd. Rahis Khan
(Supra) or Emeka Emmanuel (Supra) is also misplaced as those
judgments pertain to cases where the contraband was recovered from
the person of the accused. In contrast, here, the recovery is from the
petitioner’s premises, after obtaining prior permission and complying
with Section 42.
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46. Insofar the contention of the petitioner as regards to the
purported conspiracy under Section 29 of the NDPS Act, without any
cogent, direct, or reliable evidence connecting her to the substantive
offence under Section 21 or Section 25 is concerned, the record
reveals otherwise. It is observed from the record that the role of the
applicant, Shahida, was disclosed on 01.03.2025 by co-accused
Ranjeet, and it was at his instance that the applicant was arrested. The
chargesheet further reveals that during her interrogation, the applicant
admitted that she had received the recovered heroin from Ranjeet 10-
12 days earlier.
47. This material evidence, along with the fact that the applicant
has a history of previous FIRs pending against her (FIR No. 157/2019
under the NDPS Act and FIR No. 686/16 under the Indian Penal
Code, 1860), as well as the fact that her family members are also
involved in NDPS cases, paints a grim picture of a family deeply
entrenched in a drug cartel.
48. The allegations against the petitioner are of a very serious
nature, involving the possession of a narcotic drug and if looked at it
from a macro view, although the recovery from the premises of the
petitioner is merely 30 gms, however, the disclosure of 150 gms of
heroin being supplied earlier, the frequency of calls (CDRs), the
recovery of 300 gms from the co-accused persons and the involvement
of another accused persons namely Zakir, shows the intricate nexus,
use and supply of drugs (modus operandi). The recovery of 30 grams
of Heroin from her premises is a weighty piece of evidence. Her prior
criminal history and her family’s involvement in similar offences
strongly suggest that she is continuously involved in the crime, and
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thus a potential threat to the fabric of society, therefore, the
petitioner’s contention with regard to Section 29 of the NDPS Act
does not hold any water.
49. At this stage, it is imperative to note that the petitioner has
sought bail also on the medical grounds. The petitioner has relied
upon a Medical Report dated 03.12.2024 to demonstrate her suffering
from ophthalmological ailments. While the Court is not unsympathetic
to medical conditions, it must balance the same against the seriousness
of the alleged offence. The medical report does not indicate an
immediate life-threatening condition or incapacity to be treated within
jail premises.
Conclusion
50. In view of the above discussions of facts and law, this Court is
not inclined to release the petitioner on bail and the instant bail
application, is hereby, dismissed along with the pending applications,
if any. No orders as to costs.
51. It is clarified that nothing stated herein shall be construed as an
expression of opinion on the merits of the case.
52. The judgment be uploaded on the website forthwith.
AJAY DIGPAUL, J
AUGUST 14, 2025/gs/ryp
Signature Not Verified
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Signed By:SHILPI
Signing Date:14.08.2025
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