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1997 Supreme(Mad) 759
IN THE HIGH COURT OF JUDICATURE AT MADRAS.
N. Arumugham, J.
Kamza Zakeeya alias Hamsa and others
Versus
Intelligence Official N.C.B., Madras
Crl.O.P. No.5948 of 1997, Crl.O.P. No.5949 of 1997, Crl.O.P. No.5967 of 1997, Crl.O.P. No.5968 of 1997 and Crl.O.P. No.6431 of 1997.
Decided On : 29th July, 1997.
B. Kumar, for Petitioners.
P.N. Prakash, Additional Public Prosecutor for Respondent.
A violation of the mandatory provisions of Sections 53 and 55 of the Narcotic Drugs and Psychotropic Substances Act, 1985 entitles the accused to bail under Section 439 of the Code of Criminal Procedure.
Headnote:
BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 8(C) READ WITH 21 AND 29 - VIOLATION OF MANDATORY PROVISIONS OF SECTIONS 53 AND 55 - ENTITLEMENT TO BAIL - HELD, PETITIONERS ENTITLED TO BAIL.
Fact of the Case:
Petitioners were arrested for possession of heroin under the Narcotic Drugs and Psychotropic Substances Act, 1985. They sought bail on the grounds that the investigation was conducted by a single officer, Mr. Suresh Babu, and that there was a delay of five days in sending the seized goods to the court of competent jurisdiction, which amounted to a violation of the mandatory provisions of Sections 53 and 55 of the Act.
Finding of the Court:
The court held that the investigation conducted by a single officer did not vitiate the entire proceedings, but that the delay in sending the seized goods to the court of competent jurisdiction was a violation of the mandatory provisions of Sections 53 and 55 of the Act. The court further held that this violation entitled the petitioners to bail under Section 439 of the Code of Criminal Procedure.
Issues: 1. Whether the investigation conducted by a single officer vitiated the entire proceedings? 2. Whether the delay in sending the seized goods to the court of competent jurisdiction was a violation of the mandatory provisions of Sections 53 and 55 of the Act? 3. Whether the petitioners were entitled to bail under Section 439 of the Code of Criminal Procedure?
Ratio Decidendi: 1. The court held that the investigation conducted by a single officer did not vitiate the entire proceedings because there was no evidence that the officer had acted in a biased or unfair manner. 2. The court held that the delay in sending the seized goods to the court of competent jurisdiction was a violation of the mandatory provisions of Sections 53 and 55 of the Act because the Act requires that the seized goods be sent to the court within 24 hours of seizure. 3. The court held that the petitioners were entitled to bail under Section 439 of the Code of Criminal Procedure because the violation of the mandatory provisions of Sections 53 and 55 of the Act meant that the petitioners were not likely to be convicted at trial.
Final Decision: The court allowed the petitions and granted bail to the petitioners.
The above petitions were filed on behalf of the petitioners/ accused in C.C. Nos.74 and 75 of 1997 in the court below, seeking the relief of enlargement on bail for the offences under Secs.8(c) read with 21 and 29 of the N.D.P.S. Act.
2. On intelligence, the respondent had raided the house bearing Door No.21, situated in Alagiri Street, M.G.R. Nagar, Chennai, at about 13.15 hours on 18.1.1997 and recovered the contraband of herein to the weighment of 600 grams from the said house and consequently, Mohammed Fathima and Jaffar Ali were arrested and out of whom, Jaffar Ali was released by this Court oh bail during the month of May, 1997, but however, Mohammed Fathima had not been released for the reason that she was a Srilanka national. At about 16.00 hours on the same day, namely, 18.1.1997, a search was also made by the respondent in the premises situated at No. 1 -A, Nancy Street, Purasawakkam, Madras town, and the contraband of herein to the weighment of 520 grams was recovered from underneath of sofa and consequently, Jahufar Sathiq and Kamza Zackiya, being the husband and wife, the petitioners herein, were arrested for the reason that they were the residents of the said house Following this, at about 18.00 hours on 18.1.1997, the respondent made a search of the premises bearing Door No. 14, situated in Kisthappa Mudali Street, Purasawakkam, and recovered the contraband of 20 grams, of heroin, from inside a table drawer and consequently, Meeran Mohideen @ Wapa and Syed Ibrahim, both father-in-law and son-in-law, the residents of the said premises were arrested. The seized contrabands above referred to were recovered under the cover of mahazars prepared and attested by the respondent and witnesses and stated to be in consonance with the rules and provisions of the N.D.P.S. Act
3. Subsequently, the seized contrabands under the cover of mahazars, appears to have been produced before the court on 19.1.1997 and the court after remanding the arrested persons to the judicial custody returned the seized goods with the direction to be produced before the proper court and the above order was passed by the learned Magistrate on 19.1.1997. The statement of witnesses including the accused were recorded duly in consonance with the procedural law by the respondent, which almost, the major portion of it, appears to have been done by Mr.Suresh Babu, one of the Officers of the Narcotics Control Bureau, Madras, and the rest of the part were done by Mr.Mohan and Mrs.Vijayalakshmi, other officers.
4. While seeking the bail for the above four persons, one of the contentions raised by Mr.B. Kumar, learned counsel appearing for the petitioners, was that the major portion of the investigation, namely, conducting the search, making the seizures under the cover of mahazars, recording the complaint itself, all were done by Mr.Suresh Babu, one and the same Officer, and hence, the whole proceedings initiated by him seems to be a prejudicial one and cannot be recognised by law, as held in Megha Singh v. State of Haryana Megha Singh v. State of Haryana, A.I.R. 1996 S.C. 2339. It was a case in which, a pistol was recovered by a Head Constable and in pursuance thereof, investigation was done by him, including the filing of the charge-sheet under the provisions of the T.A.D.A. Act and Arms Act. It has been held therein, that such practice, to say the least, should not be resorted to, so that there may not be any occasion to suspect the fair and impartial investigation. Several other case laws held by the Supreme Court in Ajit Singh v. State of Haryana, Bhagwan Singh Ajit Singh v. State of Haryana, Bhagwan Singh J. T. (1996) 2 S.C. 234, Bhagwan Singh v. State of Rajasthan Bhagwan Singh v. State of Rajasthan, A.I.R. 1976 S.C. 985 and the decision of the Allahabad High Court in Nanha v. State of U.P. Nanha v. State of U.P., 1993 Crl.L.J. 938 were also relied on, for the position that since one of the several accused has been released on bail for the similar of
