Non-compliance with the mandatory provisions of Section 50 of the NDPS Act vitiates the trial and entitles the accused to bail.

( 1 ) SATISH Aggrawal has filed reply of the Department and he is assisted by two officers namely: Shri A. Pillai and Shri Sameer Sehgal, Air Custom Officers.

( 2 ) HAVE heard the parties. The petitioner was detained/arrested on 16/17th October 1994 at I. G. I. Airport and two packets contained 140 gms. of heroin and 40 gms. of opium were seized by Air Customs from the petitioner.

( 3 ) THE petitioner has approached this court for bail having failed to obtain the said relief from the Trial Court inter alia for the following reasons:

( 4 ) THAT in the case of the Piayara Singh reported as Air 1977 SC 2274 it was held by Hon ble Supreme Court that conviction could be recorded on the basis of voluntary statement which is an extra- judicial confession of the accused under Section 108 of the Customs Act. But the Court has failed to notice that on the basis of a confession retracted at the earliest opportunity, though not on the first appearance in the court a conviction cannot be sustained without further corroboration through other evidence. A reference may be made in this behalf to the case of Mahabir Das Biswas and Anr. Vs. State of West Bengal 1995 (2) CC Cases 117 (SC ). The same would be the position in the cases covered by confession of co-accused as held in the case of Sarabjit Singh @ Sodi Vs. State of Punjab reported as 1995 (2) CC Cases as 95 (HC) wherein it has been held as under: Release on bail in the absence of evidence to connect the petitioner with the offence under NDPS Act- where the petitioner has been apprehended without conducting identification parade on the statement of the co-accused and the admissibility or otherwise of the evidence of co-accused is to be decided that by the trial Court, the petitioner is released on bail in the absence of evidence to connect him with the crime. "

( 5 ) IT appears that the ratio of the judgment of this court in the case of Michael Garden Kingsbury V. Narcotics Control Bureau and Ms. Helen Anne Cooper V. Narcotics Control Bureau reported as (54) 1994 DLT 685, has also been ignored by the Trial Court.

( 6 ) IT is now settled law that the non compliance with the mandatory provisions of Section 50 of the N. D. P. S. Act would vitiate the trial. Consequently in my opinion any material which is brought on record of a case where there is no such non compliance of Section 50 can be of non avail in upholding conviction because no conviction can be sustained as a result of a trial which stands vitiated as a consequence of non compliance with the mandatory provisions such as with those of Section 50 of the N. D. P. S. Act.

( 7 ) IT is submitted on behalf of the applicant that he was forced and coerced to give statement under Section 108 of the custom Act and 67 of the N. D. P. S. Act which was retracted before the Court at which was retracted before the Court at the earliest available opportunity. Even though it is for the trial court to go into the question ad to whether such statement was voluntary and the effect of such retraction. The Court has to be very cautious in making use of such retracted confessions in the absence of any other independent evidence which would corroborated the facts stated in such confession. This could be considered at the appropriate stage in the trial by the Trial Court.

( 8 ) ANOTHER factor which could be examined at the time of framing of the charge by the Trial Court is that if there is no doubt in the violation or non compliance with the provision of Section 50 of N. D. P. S. Act would it serve at any purpose to allow the trial to go on and would it not entitled the accused to be discharged at that stage itself. Thus saving public money and the time of the court in conducting the trial which is initiated for non-compliance of the mandatory provisions of Section 50 of the N. D. P. S. Act. This however would not be so if the fact of non compliance cannot be decided without evidence. It will be appropriate for the State authorities also to con