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1996 Supreme(Ori) 74
High Court Of Orissa
P. K. MISRA
BALBIR SINGH - Appellant
Versus
STATE OF ORISSA - Respondent
CRI. MISC. 426 Of 1996
Decided On : 05/02/1996
B.K.DAS, D.P.ROY
Strict compliance with Section 42(1) of the NDPS Act is mandatory, and non-compliance thereof would affect the prosecution case and vitiate the trial.
Headnote:
BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 20(B) - BIHAR AND ORISSA EXCISE ACT - SECTION 47(A) - BAIL - CONDITIONS - STRICT COMPLIANCE WITH SECTION 42(1) OF THE N. D. P. S. ACT IS MANDATORY - NON-COMPLIANCE THEREOF WOULD AFFECT THE PROSECUTION CASE AND VITIATE THE TRIAL.
Fact of the Case:
The petitioner was arrested for allegedly possessing 5 kgs of Ganja and 1,500 liters of country liquor in his Maruti Van. He was charged under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) and Section 47(a) of the Bihar and Orissa Excise Act. The petitioner filed a bail application, arguing that the bar under Section 37 of the NDPS Act was not applicable as the alleged offense was punishable with imprisonment of up to five years. He also argued that there was non-compliance with the mandatory provisions of Sections 50 and 42 of the NDPS Act.
Finding of the Court:
The court held that the bar under Section 37 of the NDPS Act was applicable to the petitioner's case, as the alleged offense was punishable with imprisonment for up to five years. However, the court found that there was non-compliance with the mandatory provisions of Section 42(1) of the NDPS Act, as the information received by the police officer was not taken down in writing. The court also found that the petitioner had no prior criminal record and was not likely to commit any offense while on bail.
Issues: 1. Whether the bar under Section 37 of the NDPS Act was applicable to the petitioner's case? 2. Whether there was non-compliance with the mandatory provisions of Sections 50 and 42 of the NDPS Act?
Ratio Decidendi: 1. The court held that the bar under Section 37 of the NDPS Act was applicable to the petitioner's case, as the alleged offense was punishable with imprisonment for up to five years. 2. The court found that there was non-compliance with the mandatory provisions of Section 42(1) of the NDPS Act, as the information received by the police officer was not taken down in writing.
Final Decision: The court granted bail to the petitioner on the condition that he furnish cash security of Rs. 50,000/- along with two sureties each for the like amount. The petitioner was also required to report to the Bargarh Police Station on every Sunday till the conclusion of the trial and attend the Court of the Sessions Judge, Sambalpur, on each date to which the case was posted.
P. K. MISRA, J.
( 1 ) THIS is an application under Section 439 of the Code of Criminal Procedure for releasing the petitioner on bail. The petitioner is accused of having committed offences under Section 20 (b) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the "n. D. P. S. Act") and Section 47 (a) of the Bihar and Orissa Excise Act.
( 2 ) IT is alleged that the petitioner is the owner of a Maruti Van bearing registration No. OAS 7405 and the co-Accused Sukant Kumar Biswal is the Driver. The Sub-Inspector of police of Bargarh Police Station while on patrol duty, on 21-8-1995 at about 9 p. m. received reliable information that a Maruti Van bearing number OAS 7405 was coming an N. H. 6 carrying Ganja and country liquor. On receiving this information, the Sub-Inspector along with other police staff proceeded towards Sohella side. At about 10. 30 p. m. , the Maruti Van was coming from Sohella side in high speed and did not stop in spite of signal given by the police officials. After chase was given by the police, the petitioner and the co-accused abandoned the van and ran away and could not be apprehended. Thereafter the police officials searched the vehicle and recovered 5 Kgs. of Ganja and 1,5000 litres of country liquor from inside the van. On the aforesaid allegations, the Sub-Inspector of Police lodged F. I. R. before the Officer-In-Charge, Bargarh Police Station, at 11. 30 p. m. The petitioner was apprehended on 29-1-1996 and was produced thereafter. His application for bail having been rejected by the Sessions Judge, this petition has been filed in this Court.
( 3 ) I have heard the learned Counsel for the petitioner and the learned Standing Counsel and perused the case diary which has been produced. It was first contended that the alleged offence under Section 20 (b) of the Act is punishable with imprisonment which may extend to five years and as such the bar under Section 37 of the Act may not be applicable. It is submitted that the bar under Section 37 should be made applicable to offence punishable with minimum five years of imprisonment. Inspirations for the aforesaid submission is drawn from the decision of the Karnataka High Court reported in 1993 Cri LJ 94 (A. V. Dharmasingh v. The State Karnataka by the State Public Prosecutor) and the decision of the Patna High Court reported in 1994 (3) Crimes 671 (Kamlesh Kumar v. State of Bihar ). No doubt, the aforesaid two decisions support the contention of the learned Counsel for the petitioner. However, the aforesaid two decisions run contrary to the decision of the Orissa High Court reported in 1992 (1) Crimes 79 (Rajendra Panda v. State of Orissa ).
( 4 ) THE learned Counsel for the petitioner, then submitted that even assuming that the bar under Section 37 of the N. D. P. S. Act is applicable, in view of non-compliance with the mandatory provisions of Section 50 and Section 42 of the N. D. P. S. Act, the petitioner should be released on bail. He has drawn my attention to several cases of the Orissa High Court including (1994) 7 OCR 460 (Rabi Sahoo v. State); (1995) 8 OCR 320 (Fakir Sundari v. State of Orissa) and (1995) 9 OCR 121 (Narahari Das v. State), where accused persons allegedly involved under the N. D. P. S. Act were released on bail on the ground of non-compliance with the mandatory provisions of the Act. The underlying principles of the aforesaid decisions have been reiterated in (1996) 10 OCR 372 (Umakanta Patel v. State of Orissa ). The contention of the learned Counsel for the petitioner that there has been non-compliance of Section 50 of the N. D. P. S. Act is prima facie unacceptable in view of the allegation that the petitioner as well as the co-accused ran away abandoning the vehicle. If the allegation is that the accused persons ran away before search and seizure, it is not understood as to how Section 50 can come into picture. The learned Counsel than submitted that there has been non-compliance of Section 42 (1)
