Back
IN THE HIGH COURT AT CALCUTTA
NURE ALAM CHOWDHURY AND DEBI PRASAD SIRCAR - (I), JJ.
In re: Dipak Jain - Accused/Petitioner (In Jail)
Decided on: July 25, 1996
BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 50 - SEARCH AND SEIZURE - MANDATORY REQUIREMENT - NON-COMPLIANCE - DISCHARGE OF ACCUSED - STAGE OF TRIAL - SECTION 37 (1) (B) (II) - BAIL - GRANT OR REFUSAL.
Fact of the Case:
The petitioner, Dipak Jain, was arrested for allegedly receiving two packets of brown sugar from two other individuals. The police claimed to have caught him red-handed during a search operation based on a tip-off. The petitioner's counsel argued that the search and seizure were conducted in violation of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), and that the petitioner was entitled to discharge.
Finding of the Court:
The court acknowledged the mandatory nature of Section 50 of the NDPS Act, which requires the authorized officer to inform the person to be searched of their right to be searched in the presence of a Gazetted Officer or a Magistrate. However, the court relied on the Supreme Court ruling in AIR 1996 SC 977, which held that non-compliance with Section 50 does not automatically entitle the accused to discharge or acquittal before trial. The court emphasized that the prosecution should be given an opportunity to prove that the search was conducted in accordance with the law, and that the weight to be given to the evidence collected would be determined during the trial.
Issues: 1. Whether non-compliance with Section 50 of the NDPS Act mandates the discharge of the accused before trial. 2. Whether the accused is entitled to bail in a case involving serious offenses under the NDPS Act.
Ratio Decidendi: 1. The court held that the accused cannot be discharged ipso facto at the pre-trial stage solely on the ground of non-compliance with Section 50 of the NDPS Act. The court emphasized that the trial must take a normal course, and the accused must face trial. 2. The court considered the gravity of the offense, the stage of the case, and the strong opposition from the Public Prosecutor in denying bail to the accused. The court also referred to Section 37 (1) (b) (ii) of the NDPS Act, which restricts bail in cases involving certain serious offenses under the Act.
Final Decision: The court rejected the petitioner's bail application, holding that the accused could not be discharged at the pre-trial stage due to non-compliance with Section 50 of the NDPS Act. The court also found that the accused was not entitled to bail considering the gravity of the offense and the provisions of Section 37 (1) (b) (ii) of the NDPS Act.
1. The petitioner Dipak Jain has filed this petition under Section 439 Cr. P. C. 1973 praying for bail. The matter has already been beard on 26.7.96.
2. The petitioner's case is that he has been taken to custody in connection with Chanchal P.S. Case No. 46 of 1996 dated 26.6.96 under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as N.D.P.S. Act; along with five others, on the allegation that on 26.6.96 the petitioner was caught red banded while he was taking delivery of brown sugar from the other two persons taken to custody in connection with that case, and that, two packets of brown sugar each weighing 500 gms., were recovered from them at that time. It has been alleged in the FIR of Chanchal P.S. Case No. 46 of 1996 dated 26.6.96 that O.C., Chanchal P.S. got an information on that date at about 12.05 hour in the term that Swapan Mondal and Akhtar Sk., two smugglers dealing in brown sugar were arriving at Chanchal bus stand by private car No. WNL 3359 and that they would give delivery of huge quantity of brown sugar to Abdus Samad and the petitioner, Dipak Jain. The information was recorded in the G.D. of P.S. under G.D. Entry No. 1203 dated 26.6.96 and some S.I. of Police accompanied the O.C. (Anil Kumar Roy) de facto complainant, and went to Chanchal bus stand under supervision of Circle Inspector Sri P.C. Das. They took with them two private persons to bear witness of expected recovery of brown sugar from the persons named by the source of information. At about 15.10 hour they saw the private car No. WNL 3359 coming to Chanchal bus stand from Malda side. No sooner had that private car stopped at Chanchal bus stand, two persons hurriedly entered into the private car and the petitioner was one of those latter two persons. The police party under the direct supervision of Circle Inspector. Chanchal, Sri P.C. Das, intercepted the private car and found that Swapan Mondal and Akhtar Sk. were giving delivery of two polythene packets containing brown sugar to Abdus Samad and the petitioner, Dipak Jain. On seeing police, the accused, Swapan Mondal and Abdus Samad tried to conceal these packets under their garments, but on challenge by police they produced those two packets to the de facto complainant in presence of other members of police party and the private persons who accompanied the police party to bear witness. Those persons could not produce any valid paper or cash memo for possessing or carrying brown sugar. The de facto complainant got weighed the brown sugar recovered from the possession of Swap an and Akhtar seized the same, maintaining required formalities in that respect and also arrested the persons from whom the packets were recovered as well as the persons to whom they were about to deliver the contraband and started this case against all those persons including the petitioner.
3. The learned Advocate for the petitioner submits that the contraband was recovered, not from possession of the petitioner but from possession of other persons, that is those who came by the car and as such the petitioner is being prosecuted illegally. The main spearhead of his argument is that the search and seizure was done in desperate violation of Section 50 of the N.D.P.S. Act and as such the petitioner is entitled to be discharged. In support of his contention as above the learned Advocate relied on the rulings reported in (1) AIR 1979 SC 711, 1994 AIR SCW 1802, 1994 AIR SCW 4393 and AIR 1995 SC 1157. He submits that in all those rulings, the Hon'ble Supreme Court has been pleased to hold in exclusive terms that search and seizure in violation of Section 50 of the Act is unlawful and that the person accused of possession of the contraband is entitled to be discharged or acquitted as the case may be. The learned Advocate, Mr. Saha, for the State cites and relies on the ruling reported in (2) AIR 1996 SC 977.
4. We have considered the arguments of the learned Advocate of both the p
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
