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BOMBAY HIGH COURT
S.M. Daud, J.
Sham Ramchandra Sonawane - Applicant
versus
State of Maharashtra - Respondent
Crl. Application No. 1126 of 1991
Decided on 19.9.1991
Counsel for the parties:
For the Applicant: Mr. P.R. Vakil with Mr. S.J. Ghogare
For the Respondent: Mr. K.H. Chopda, P.P.
Held: Unlike the Code the legislature in enacting Section 37 has advisedly used different words. In Section 437 of the Code the Court is enjoined not to release a person on bail "if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life". This limitation is trifling compared to the limitation imposed by Section 37 of the NDPS Act which fetters the Court from grant of bail unless "the Court' is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail". Under the Code the suspect is not to be released on bail if there appear reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life. Section 37 of the NDPS Act lays down the converse by prescribing that the person accused of an offence punishable for a term of imprisonment for five years or more under the NDPS Act, can be released only if there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. The words "any offence" appearing in the second part have of course to be read to mean an offence under the NDPS Act, and, possibly one which prescribes punishment for a term of imprisonment of five years or more. In the face of Section 37 it would not be enough to say that there has been an infraction of some requirement of Section 50 of the Act to entitle the suspect to be released on bail. As observed earlier this Court has more than once held that the provisions of Section 50 are not mandatory, except the requirement that the suspect prior to his search be informed that the search is for the purpose of recovery of drugs. Even if this duty be not performed, the result would not be a vitiation of the entire search. This is because it is well settled that an illegality tainting a search does not preclude the reception of evidence obtained by the illegal search. It was argued, and, with some justification, that the spirit of Section 50 of the Act has not been followed in the instant case. Mr. Vakil says and I am inclined to agree with the contention that the Gazetted Officer spoken of by Section 50 of the NDPS Act, has to be a person other than participating in the search who also happens to be a Gazetted Officer. But as said earlier, even if this requirement is not followed and even if the same be held to be mandatory, the result would not be the conclusion that there would come into existence reasonable grounds for believing the suspect to be not guilty of an offence punishable with imprisonment for a term of five, years or more. I should not be understood as saying that accused would not be entitled at the trial to prove that the infraction has caused a great deal of prejudice to him thereby rendering the evidence sought to be adduced by the prosecution entirely doubtful. Neither should I be understood as saying that even at the stage of bail the Court is powerless to consider the alleged breaches as a basis for concluding that the suspect has not committed the offence ascribed to him. It would all depend upon the circumstances of the case. (Para 5)
Further held: It is possible for the suspect at the stage of bail to say that he is not guilty of the offence and that there is reason to believe him to be innocent. But this is not to be equated with the suspect being under no greater obligation than to show a trifling breach of some provision irrespective of whether it is directory or mandatory and then ask the Court to presume that he is innocent so that he can secure his release under Section 37 which section prescribes bail only where the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence. The burden upon the suspect seeking bail in cases falling under Section 37 of the NDPS Act is far heavier and a breach of this or that provision will not necessarily enable him to secure his release. What would, depends upon the facts and circumstances of each case. Here, there is no doubt of the suspect being mis-informed of his right to be searched by a Gazetted Officer. Next, P.I. Pawar was indulging in sophistry when telling the suspect that he could be searched by a Gazetted Officer and in the very next breath intimating that he himself was one such Officer. The information about P.I. Pawar being a Gazetted Officer was in the nature of an intimidation that the suspect dare not insist upon being taken to another Gazetted Officer. But this is not all. Other circumstances should not be lost sight of. Sham was found in a public place in broad daylight upon a busy street of Bombay and in possession of a large quantity of heroin. The drug could not have been planted upon him and, at least at this stage, the presumption will be that the Officers have acted fairly and reasonably. Having regard to this situation, it would be unwise to yet attribute to the enforcement Officers a desire to somehow implicate a blameless person. Therefore, even if there have been breaches of Section 50 of the Act that cannot be said to be a case for inferring that Sham's innocence has been made out. (Para 7)
(ii) Narcotic Drugs & Psychotropic Substances Act, 1985 - Section SO - Right of suspect to be searched in the presence of a Gazetted Officer or a Magistrate - Whether Sec. 50 of the Act is directory or mandatory? - Divergent views of the High Courts.
Result: Application dismissed.
JUDGMENT (ORAL)
S.M. Daua, j. - This is an application for bail by a person who is alleged to have committed offences punishable under Sections 8(c) read with 21 and 29 of the Narcotic, Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
2. The case against the applicant resulting in the registration of C.R. No. 13 of 1991 by the Narcotic Cell, Ghatkopar Unit, Bombay may be summarised thus:
Police Inspector S.R. Pawar of the aforementioned Cell received an information on 4.2.1991 that three persons viz. Siraj, Naeem and the applicant Sham were to engage in a transaction of narcotics at about 16.30 hrs. near Vijaya Bank, S.V. Road at Santacruz, Bombay. The information was brought to the notice of the Deputy Commissioner of the Cell who ordered his subordinates to lay a trap. A trap was arranged and the police party set out with two panchas. The party took positions at the place mentioned above. At about 16.30 hrs. came three persons answering to the physical description received by the Cell viz-a-vis Siraj, Naeem and Sham. The party led by P.I. Pawar surrounded the trio and made known their intentions. What transpired can be best described in the words of the panchanama thus:
"The officers and men surrounded and detained them on the spot. P.I. Pawar disclosed his identity and informed them that the police wanted to take their personal searches. P.I. Pawar also told them that they had a right to have their personal searches taken by gazetted officer under Section 50 of the N.D.P.S. Act, 1985. He informed them that he is gazetted officer."
So far as the applicant Sham is concerned, he is said to have been holding one white coloured plastic bag in his right hand. The bag was found to contain two small cloth bags which were stitched. These bags were slit open and found to contain a powdery substance which gave off a strong odour. Small samples of the powdery substance were tested on a drug identification kit and both gave out a positive result indicating the powdery substance to be heroin. Samples were collected and sealed. After this the trio were marched to the Cell where P.S.I. Nigade who was also part of the raiding party lodged a report. Statements of various persons were recorded. In due course, the culprits were put up before the Special Judge.
3. The applicant contends that he is innocent and that the record such as it exists indicates a breach of Sections 50, 55 and 57 of the NDPS Act. The requirements of the said sections are mandatory and absolute compliance therewith is necessary. Having regard to the violations, the applicant is entitled to bail. The State opposes the bail application and has filed an affidavit of P.I. Pawar to fortify the objections raised by it. Briefly stated, the contention is that there is no breach of the sections mentioned by the applicant in his application. At the hearing of the application Mr. Vakil representing Sham restricts himself to the contention that there has been a breach of Section 50 of the Act as also Section 100 of the Code of Criminal Procedure, 1973 (Code) which latter prescribes the conditions under which searches have to be carried out.
4. The application has to be considered in the background of certain provisions of the NDPS Act. Having regard to the fact that drugs have been allegedly recovered from Sham in a personal search the section relevant thereto is Section 43 which to the extent relevant reads thus:
"Any officer mentioned in Section 42 may:
(a) seize, in any public place or in transit, any narcotic drugs or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed.....
(b) detain and search any person whom he has reason to believe to have committed an 9ffence punishable under Chapter IV, and, if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful; arrest him and any other person in his company."
Section 50 which is
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