Court holds that personal search conducted in presence of male officers violated Section 50(4) of NDPS Act, thus vitiating seizure and negating applicability of Section 37's stringent bail conditions
In a significant ruling on September 28, 2026, the Bombay High Court granted bail to Jaibun Mohammed Shaikh, a female accused in a narcotics case registered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The Court found that the personal search of the accused and the search of her purse were conducted in violation of the mandatory provisions of Section 50(4) of the NDPS Act, which safeguards the privacy and dignity of female accused persons during searches.
The case arose from an incident on September 25, 2025, where the applicant, along with another accused, was found in possession of contraband-57 grams of MD (Mandrax) in the purse of the applicant and 111 grams of heroin on the other accused. The police conducted searches and seized the narcotics, subsequently arresting the accused and filing charges under Sections 8(c), 21(b), 22(c), and 29 of the NDPS Act.
The applicant sought bail on the ground that the personal search of her person and purse was carried out by a female police constable in the presence and gaze of a male police officer and a male panch (witness), thereby violating the statutory requirement under Section 50(4) that a female accused must be searched in seclusion and to the exclusion of males. The prosecution contended that the presence of male officers at the time of search did not vitiate the proceedings and that the quantity of contraband was sufficient to deny bail.
Upon examining the spot panchanama and the circumstances of the search, Justice Shyam C. Chandak concurred with the applicant's submissions, holding that the mandatory requirement of seclusion during the search of a female accused was not complied with. The Court referenced binding precedents, including the Division Bench judgment in Mrs. Veneela Tilak v. Shri Shahasane (1997) and the Single Judge ruling in Heena Bharat Shah v. State of Maharashtra (2017), which emphatically stated that the presence of male persons during a search of a female accused contravenes Section 50(4) of the NDPS Act and renders the search invalid.
The Court further noted the Supreme Court's decision in State of Punjab v. Surinder Rani (2000), reinforcing the non-negotiable nature of this provision. Given the vitiation of the search and seizure, the Court found it reasonable to infer that the applicant may not be guilty of the offences alleged and that the rigors of Section 37 of the NDPS Act- which ordinarily restrict bail in cases involving commercial quantities of narcotics-did not apply.
The applicant was ordered to be released on bail upon furnishing a personal bond of Rs. 50,000 with sureties, subject to conditions including regular attendance at the police station, non-indulgence in similar activities, and non-tampering with evidence.
This judgment underscores the judiciary's commitment to uphold procedural safeguards guaranteed by law, especially those protecting the dignity and privacy of female accused persons during investigations under stringent laws like the NDPS Act.
Bottom Line:
NDPS Act - Bail granted to female accused where personal search and search of purse were conducted by female constable but in presence and gaze of male police officer and male panch - Such search held prima facie in violation of mandatory requirement of Section 50(4) of NDPS Act that female be searched in seclusion and to exclusion of males - Consequently, Court held that rigours of Section 37 were not attracted.
Statutory provision(s):
Narcotic Drugs and Psychotropic Substances Act, 1985 Sections 8(c), 21(b), 22(c), 29, 37, 50(4)
Jaibun Mohammed Shaikh v. State of Maharashtra, (Bombay) : Law Finder Doc Id # 2997191
