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IN THE HIGH COURT AT CALCUTTA
Aniruddha Bose & Sankar Acharyya, JJ.
Sarwan Ram @ Sarwan Singh Ram & Another – Petitioners
Versus
The State of West Bengal – Respondent
C.R.M. Nos. 15, 94, 127 of 2016 & 9297, 9370, 9843, 10053, 10119, 10801, 10809, 11719 of 2015
Decided On : 25-11-2016
BAIL - Offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) - Consideration of - Whether the Court can examine the question of compliance with Section 50 of the NDPS Act while considering the question of grant of bail - Held, no.
Fact of the Case:
In a batch of petitions seeking bail in cases registered under the NDPS Act, the petitioners contended that the search and seizure process was flawed and that there was non-compliance with the statutory safeguards under Section 50 of the Act, which would ultimately lead to acquittal in the trial. The petitioners relied on various judgments of the Supreme Court and other High Courts in support of their arguments.
Finding of the Court:
The Court held that at the stage of considering the question of grant of bail, the Court ought not to examine the question of compliance with Section 50 of the NDPS Act, as held by a Coordinate Bench of the Court and a Referee Judge in earlier cases. The Court observed that the issue of compliance or non-compliance with Section 50 of the NDPS Act is a matter to be decided on the basis of evidence at the trial.
Issues: 1. Whether the Court can examine the question of compliance with Section 50 of the NDPS Act while considering the question of grant of bail? 2. Whether the petitioners are entitled to bail in view of the alleged flaws in the search and seizure process and non-compliance with the statutory safeguards under Section 50 of the NDPS Act?
Ratio Decidendi: The Court held that the question of compliance or non-compliance with Section 50 of the NDPS Act is a matter to be decided on the basis of evidence at the trial. The Court relied on the judgment of the Supreme Court in the case of State of Punjab vs. Baldev Singh, wherein it was held that failure to inform the concerned person of his right to be searched before a Gazetted Officer or a Magistrate may render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, but it does not entitle the accused to be released on bail.
Final Decision: The Court rejected all the petitions, except for C.R.M. No. 127 of 2016, which was to be dealt with separately.
Aniruddha Bose, J.
1. The petitioners in all these cases have been primarily accused of offence of being in possession of contraband articles under the provisions of The Narcotic Drugs and Psychotropic Substances Act, 1985 (the 1985 Act) beyond commercial quantity and are seeking bail pending their trial. In their petitions for bail, the petitioners question the legality of the process of search and seizure through which the contraband articles are alleged to have been recovered from them and they seek bail mainly on the ground that such search and seizure process are flawed. There is special provision restricting grant of bail to persons accused of offences under the 1985 Act. Such restrictions have been specified in Section 37 of the Act:-
“37. Offences to be cognizable and non-bailable.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) –
(a) Every offence punishable under this Act shall he cognizable;
(b) No person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless:-
(i) The Public Prosecutor has been given an opportunity to oppose the application for such release;
(ii) Where the Public Prosecutor opposes the application, 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.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail.”
2. The manner in which search is to be conducted under the said Act has been stipulated in Sections 41, 42, 43 and 50 thereof and these provisions specify:-
“41. Power to issue warrant and authorisation.-(1) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed.
(2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the paramilitary forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed i
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