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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K. SWAMIDURAI & THE HONOURABLE MR. JUSTICE K. VENKATASWAMI
Sundaresan Alias Meganathan Alias Mega - Appellant
Versus
State - Respondents
C.O.No.3841 of 1993
Decided On : 18 May 1993
The petitioner, accused of possessing Ganja under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), sought bail under Section 439 of the Code of Criminal Procedure, 1973 (CrPC). The court examined the mandatory provisions of the NDPS Act, particularly Sections 41 to 57, and their impact on the grant of bail.
Fact of the Case:
The petitioner was arrested on 5-3-1993 at about 9.00 p.m. while riding his bicycle near Ganpat Hotel in T. Nagar, Madras. The police alleged that he was carrying one kilo and 50 grams of Ganja in the carrier of his bicycle. The petitioner denied the allegations and claimed that he was falsely implicated in the case. He contended that the mandatory provisions of the NDPS Act were not followed, including informing him of the grounds of arrest and taking him before a Gazetted officer or Magistrate as required under Section 50 of the Act.
Finding of the Court:
The court held that the provisions of Sections 41 to 57 of the NDPS Act are mandatory and that violation of the same would be fatal to the case of the prosecution. The court further held that the compliance of the mandatory provisions can be looked into even at the time of grant of bail. In this case, the court found that the mandatory provisions of the NDPS Act had not been followed by the police, including informing the petitioner of the grounds of arrest and reducing into writing the belief from personal knowledge that the petitioner was in possession of the narcotic substance as required under Section 42 of the Act.
Issues: 1. Whether the provisions of Sections 41 to 57 of the NDPS Act are mandatory and their violation would vitiate the trial. 2. Whether the compliance of the mandatory provisions can be looked into at the time of grant of bail. 3. Whether the petitioner was informed of the grounds of arrest and whether the police had reduced into writing their belief from personal knowledge that the petitioner was in possession of the narcotic substance as required under Section 42 of the NDPS Act.
Ratio Decidendi: The court relied on various High Court and Supreme Court judgments to hold that the provisions of Sections 41 to 57 of the NDPS Act are mandatory and that violation of the same would be fatal to the case of the prosecution. The court also held that the compliance of the mandatory provisions can be looked into even at the time of grant of bail. In this case, the court found that the mandatory provisions of the NDPS Act had not been followed by the police, including informing the petitioner of the grounds of arrest and reducing into writing the belief from personal knowledge that the petitioner was in possession of the narcotic substance as required under Section 42 of the Act. Therefore, the court held that the petitioner was entitled to be released on bail.
Final Decision: The court allowed the petition and directed the release of the petitioner on bail on his executing a bond for a sum of Rs. 20,000/- (Rupees Twenty thousand) only with two sureties for a like sum each to the satisfaction of XVII Metropolitan Magistrate, Saidapet Madras and on further condition that the petitioner should report before the respondent/police at 10-30 a.m. on every Monday for four weeks.
Certainly. Based on the provided legal document, the key points are as follows:
The case involves an accused person charged under Section 20(b)(i) of the NDPS Act for possession of Ganja, with the court examining the legality of the arrest, search, and procedural compliance (!) (!) .
The court emphasized that the provisions of Sections 41 to 57 of the NDPS Act are mandatory, and any violation of these provisions can invalidate the prosecution’s case and impact the trial’s legality (!) (!) (!) .
The accused was not informed of the grounds of arrest nor was he taken before a Gazetted Officer or Magistrate as required under the relevant sections, which constitutes a breach of mandatory procedural safeguards (!) (!) (!) (!) .
The seizure of Ganja was allegedly made from the person of the accused, but the respondent's counter affidavit suggests it was seized from the carrier of the bicycle, raising questions about procedural adherence and the legality of the search (!) (!) (!) .
The court held that the violation of procedural safeguards, such as failure to inform the accused of grounds of arrest and failure to record the belief from personal knowledge, renders the arrest illegal and entitles the accused to bail (!) (!) (!) (!) .
The court noted that the provisions of Sections 37 and 50 of the NDPS Act impose restrictions and mandatory procedural requirements on the grant of bail, which must be satisfied, including that the accused is not likely to commit any offence while on bail and that the accused has no previous bad antecedents (!) (!) (!) .
It was observed that procedural violations, such as not recording the grounds
SWAMIDURAI, J.
The accused in Crime No. 211 of 1993 on the file of the Inspector of Police, R4 Pondy Bassar Police Station, Madras has filed this petition for grant of bail under Section 439 of the Code of Criminal Procedure.
2. The petitioner stands charged for on offence punishable under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act). The respondent is stated to have seized one kilo and 50 grams of Ganja from the petitioner on 5-3-1993 at about 9.30 p.m. and remanded to judicial custody on 6-3-93 at about 9.00 a.m. for fifteen days. The petitioner submits that the order of remand is illegal and that the entire story of the prosecution is false and fabricated. The case of the petitioner is that after the arrest on 5-3-93 at 9.30 p.m. he was confined in a hotel room and that the petitioner was not informed of the grounds of arrest, nor was he permitted to inform his people or to consult his legal practitioner of is choice. According to the petitioner, all the mandatory procedures prescribed in the NDPS Act were not followed and the petitioner was subjected to untold sorrow. No case has been made out against the petitioner. The petitioner is an upright man with honest means and he has no previous bad antecedents. He had not committed any offence at any time, much less any offence under the NDPS Act. The petitioner is a law abiding citizen and he will not flee from justice. The petitioner will abide by any conditions that may be imposed if he is released on bail.
3. The petitioner has filed a typed set in which he has filed a copy of the F.I.R. in Cr. No. 211/93 on the file on the respondent-police, copy of remand order dated 6-3-93, supporting affidavit of Vijayalakshmi, w/o. J. Jayakumar filed in Crl.M.P. No. 1098 of 1993, copy of telegram sent by Vijayalakshmi Jayakumar to the President of India, New Delhi affidavit of Sundaresen alias Meganathan alias Mega, the petitioner herein filed in Crl.M.P. No. 1098/93 and supporting affidavit of Shanmugham alias Shyam filed in Crl.M.P. No. 1098/93. A copy of the typed set was also furnished to the learned Additional Public Prosecutor in this case. There is no opposition for receiving this typed set containing the abovesaid affidavits etc.
4. Vijayalakshmi in her supporting affidavit has stated as follows :- She is the wife of J. Jayakumar, the brother of Hon'ble Chief Minister Dr. Selvi Jayalalitha. Vijayalakshmi is having a son and a daughter. The petitioner and his family are living with them, assisting her and her husband. The petitioner is with their family for over fifteen years and is also having certain properties - the petitioner is a well-informed person. The petitioner used to go to the house of the Hon'ble Chief Minister as and when they would ask him to go there on some work or other. The petitioner was very much interested in bringing their family and the family of the Hon'ble Chief Minister closer than ever before. It was disliked by Mrs. Sasikala, who is a good friend of the Hon'ble Chief Minister. Mrs. Sasikala had an intent that the petitioner should be driven away from their family so as to make their family helpless and to keep their family at a distance from the family of the Hon'ble Chief Minister. Perhaps it might not have reached the knowledge of the Hon'ble Chief Minister. Mrs. Sasikala has been acting against them with malicious intent for mischievous ends. Mrs. Vijayalakshmi suspects that as a part of game, the petitioner was arrested and kept in custody, for no fault of his. The petitioner was away from Madras and attending to the work at the Farm at Sunguvarchatram on 3-3-93, 4-3-93 and 5-3-93 as per their direction. He is also one of the Directors of the Company called J. J. Marine Products Private Limited which runs the Farm at Sunguvarchatram. The petitioner returned to their house at 8.45 p.m. on 5-3-93. At about 9.00 p.m. on 5-3-93 a phone call came from the respondent, Insp
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