MADHYA PRADESH HIGH COURT
BENCH AT INDORE
J.G. Chitre, J.
Laxmikant Mangal - Applicant
versus
Union of India - Respondent
Misc. Crl. Case No. 1198-95
Decided on 15.5.1995

Headnote:Criminal Procedure Code, 1973 – Section 439 - Narcotic Drugs and Psychotropic Sub - stances Act, 1985- Section 37 - Bail Application - Applicant, an Inspector in Preventive Central Narcotic Bureau - Seizure of articles containing opium - Applicant handed over articles seized to District Excise Officer for disposal- It was noticed that articles were not smelling of narcotic drug - Applicant in judicial custody No case that applicant is likely to tamper with evidence if released on bail- Infirmity of investigation in material collected - Prayer for bail satisfies requirements of Section 37 - Reasonable grounds for releasing applicant on bail.

       Held: That in S. 439 of the Code, the word ‘custody' has been used. The word in 'person accused of offence' has been also used u/s 439 of the Code. Taking into consideration vehement opposition to this bail application and statement made by Shri Desai, that applicant is needed for the purpose of interrogation, in view of S. 67 of NDPS Act, in my view the applicant is entitled to make a prayer for getting himself released on bail in view of S. 439 of the Code, as he is in custody because of judicial orders in context with an offence. This application will have to be decided as it has been admitted for hearing by order dt.10.5.1995 after Shri Desai was also heard. (para 16).

       Further Held: When the samples were again to be taken and that too after such a long gap of time and when those articles were bearing seals of the applicant, according to me, prima-facie it was necessary to call panch witnesses who were present at the time of initial raid and applicant. The applicant may not have been available for the purpose of resampling but atleast, those two panch witnesses were available and they could have been easily called for the purpose of resampIing. It is pertinent to note that initial samples and those articles were sealed in presence of those two panch witnesses and, therefore, it was for the officers of the department to call those two panch witnesses for the purpose of taking the fresh samples for examination by F.S.L. This infirmity takes away credence, prima-facie, from the report of F.S.L. (Para 20)

       Consequently Held: If at all the investigating officer of the department wants to get information from the applicant u/s 67 of NDPS Act, qua Cr. No. 1/95, that can be done in free atmosphere. For the purpose of getting the said information u/s 67 of the Act, according to me, custody of applicant is not necessary. The investigating officers of the department are at liberty to take appropriate steps for the purpose of getting information from applicant, by using S. 67, even now without putting the applicant in custody. The applicant happens to be an inspector in the department. He must have been well acquainted with the tacts of interrogation to be done in view of S. 67 of the Act. He might have done this previously in some cases when so required. When applicant is making a prayer for bail, it is difficult to believe that the applicant would give such information to investigating officer if he happens to be in custody only. If such information is elicited from the applicant, by putting him in custody, the statement made by him or information given by him to the I.O. would not be information given by him voluntarily. That statement or that information would be smelling of compulsion. (Para 23)

       Finally Held: For the purpose of considering all these things I have made a reference to the investigation done so far and I am aware that it is not proper to make observation in respect of merit at the time of deciding bail application. But it is necessary to touch it for the purpose of ascertaining the strength of material which has .been collected by the investigating agency against the accused. I have considered the material aspect of this matter for the purpose of assessing strength of material which has been collected against this applicant by the I.O., I would be definitely giving a direction that this should not weigh at the time of trial causing prejudice to either side. (para 27)

       The applicant happens to be an inspector in the Deptt. There is nothing suggested by the prosecution that applicant is hardened criminal and is likely to tamper with the evidence if re leased on bail. (Para 28)

       Keeping in view the provisions of S. 37 of NDPS Act, I have made reference to the merit of the prosecution case and material which has been collected by the Investigating agency against the applicant. Unless that is done, this court will not be in position to conclude whether there are reasonable grounds for believing that applicant is not guilty, of such offence. Keeping in view the infirmity of the investigation or in material collected by the Investigating Agency, as pointed above, viz. delay in disposal of the property, submission of a report u/s 169 of the Code. The absence of panch witnesses who were present at the time of initial raid and seizure of articles at the time when resamples were taken which were examined by F.S.L., I come to the conclusion that prayer for bail made by the applicant satisfies the requirements of S. 37 of NDPS Act. (para 31)

       Result : Application allowed.