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Gujarat High Court
Judgename :K.J.VAIDYA
STATE OF GUJARAT - Appellant
Versus
SHAIKH LALA SHAIKH BALU - Respondent
MISC.CRI.APPLN. 5213 of 1994
Decided On : 02/10/1995
The learned Judge has on face of it has mis-applied Section 42(2) of the NDPS Act at pre-trial stage and therefore, the said ground shall have to be rejected. In substance, the concerned officer has shown bonafide by giving an opportunity to the accused to be searched in presence of the gazetted officer. In this view of the matter, it is indeed unfortunate that the learned Judge has not cared to peruse the police papers and straighway has released the accusedon the ground of not complying with the provisions as contained in Section 50 (1) of the Act. Merely because the raiding officer has not stated so in the contemporaneous record viz., FIR or Panchnama, that by itself would not be sufficient at the pre-trial/bail stage to conclusively hold that he has not complied with the provisions contained in Section 50(1) of the Act.
[Paras 6 & 6.1]
Evidence Act, 1872 - Sec. 114(e) - Presumption under - Official duty is presumed to be performed in ordinary course - Presumption however is rebuttable - Contrary presumption not proved - Grant of bail in the instant case is not proper.
So far as the procedural aspect of informing the accused is concerned, the same is an official duty and in view of Section 114(e) of the Evidence Act, it should be presumed that he has performed that duty in ordinary course unless of course the said fact is challenged in the cross-examination of the concerned officer and proved to the contrary. In this view of the matter, the learned Judge was once again patently wrong in releasing the accused on bail on the ground that the requirement of Section 50(1) of the Act was not complied with.
[Para 6.1]
Interpretation of Statute - Narcotic Drugs & Psychotropic Substances Act, 1985 - Sec. 37 - As amended in 1987 - Statement of Object and Reasons - Grant of bail is contrary to object and reasons.
It is also further conscious of the fact that the principles governing the bail and cancellation of bail are quite different, and yet at the same time, taking into consideration total mis-application of the relevant provisions of the NDPS Act, as discussed above, and more particularly because of the statutory prohibition contained in Section 37 of NDPS Act, prohibiting grant of bail in cases involving offences punishable with the imprisonment for five years and more where `Ganja weighing 8.200 kg. was found, the bail granted earlier is required to be cancelled, with a view to see that clandestinely even the accused does not commit the same or similar offences in future. Not to cancel the bail would be not only risking overall public interest involved but the same would be contrary of Section 37 (amended) of the Act. Accordingly Court is duty bound to step-in and cancel the bail.
[Para 8]
( 1 ) "whether at the pre-trial stage of deciding the bail application for the alleged offence under Sec. 20 (b) of the Narcotic Drugs and psychotropic Substances Act, 1985, the Court is justified in going into technical questions such as (i) the compliance of the mandatory provisions under Secs. 42 (2) and 50 (1) of the NDPS Act; and (ii) regarding the possession of the house in question from where the muddamal narcotic substance was found out ?" These two questions arise for consideration in the context of the facts and circumstances as enumerated hereunder.
( 2 ) ACCORDING to the prosecution, Mr. P. V. Kotwal, PSI, Limbayat Police station, Surat, on receiving the tip-off that Shaikh Lala Shaikh Balu was illegally storing and selling "ganja", he immediately requisitioned the services of two panchas and raided his house on 4-8-1993 at 21-30 hours. At that time, the accused was present in the house and on taking search of his house, from one room, white coloured bag was recovered and on opening the same, "ganja" was found out. On making inquiry about the possession of the said "ganja", the accused had neither any pass nor permit nor could he render any explanation. Thereafter, on weighing the said muddamal, the same was found to be weighing in all 8. 20 kg. This was seized under the Panchnama. On the basis of this allegation, the respondent was arrested and a complaint was filed against him on the very day at Limbayat Police Station for the alleged offences under Sec. 20 (b) of the Narcotic Drugs and Psychotropic Substances act, 1985 (for short ndps Act), which came to be registered as CR-III 63 of 1993. Thereafter, it appears that on 28-4-1993, the accused submitted a bail application, the same being Misc. Criminal Application No. 1196 of 1993 in the Sessions Court at Surat. This was allowed by an order dated 3-9-1993 and accordingly, the accused came to be released on bail in the sum of Rs. 7,000. 00 and a surety of the like amount and upon other terms and conditions as stated in detail in the impugned order, giving rise to the present application for cancellation of bail.
( 3 ) THE respondent-accused though served, is absent, however, taking into consideration the fact that this is an application for cancellation of bail and that too under the NDPS Act, and further in view of the fact that the accused is unrepresented, Mr. J. M. Panchal, the learned Advocate was requested to assist the court as amicus curiae which he readily agreed and ably assisted for which this court is thankful to him.
( 4 ) HEARD learned A. P. P. Mr. K. T. Dave, and the learned Advocate (Appointed) mr. J. M. Panchal.
( 5 ) ON going through the impugned judgment, it appears that the accused has been released on bail on two grounds, viz. , (i) that the PSI who raided the house of the accused failed to company with the mandatory provisions as contained in secs. 42 (2) and 50 (1) of the NDPS Act; and (ii) that there was no satisfactory evidence on the record to show that the house in question from where muddamal "ganja" was seized was one in the possession of the accused as the ration card did not incidate the number of the said house.
( 6 ) NOW, with due respect to the learned Sessions Judge, it appears that she has committed patent and obvious error while deciding the bail application releasing the accused on bail on the aforesaid two grounds. It also further appears that the learned Judge has clearly over-looked the basic principle, viz. , that while deciding the bail application, at pre-trial stage, the Court is not required to thread-bear analyse the case or appreciate the evidence which is ordinarily done at the end of the full- dressed trial to find out whether there is sufficient evidence for onviction rather, what is to be seen and found out at this stage of bail application is whether there was a prima facie case against the accused or not. In search of what is prima facie case the Court ought to guard itself against possible conf
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