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1997 Supreme(P&H) 37
PUNJAB & HARYANA HIGH COURT
R.L.Anand, J.
Balwinder Singh
Versus
State Of Punjab
Criminal Miscellaneous No. 72 of 1997,
Decided On : JANUARY 7, 1997
Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is a special enactment that prevails over the general provisions of the Code of Criminal Procedure, 1973, and the High Court's powers to grant bail are subject to the conditions mentioned in Section 37 of the Act.
Headnote:
BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 37 - BAIL - CONDITIONS - RECOVERY OF NARCOTIC DRUGS - PRESENCE OF GAZETTED OFFICER - COMPLIANCE WITH SECTION 50 OF THE ACT - NON-COMPLIANCE WITH SECTION 55 OF THE ACT - JOINING OF INDEPENDENT WITNESS - EFFECT ON RECOVERY - SCOPE OF INQUIRY IN BAIL APPLICATION - INTERPRETATION OF SECTION 37 OF THE ACT - NON OBSTANTE CLAUSE - LIMITATION ON POWERS OF HIGH COURT TO GRANT BAIL - SPECIAL ENACTMENT PREVAILS OVER GENERAL LAW.
Fact of the Case:
Balwinder Singh was arrested for possession of a large quantity of narcotic drugs and psychotropic substances. He applied for bail, arguing that the recovery of the drugs was illegal because it was not conducted by a gazetted officer and that the provisions of Section 55 of the Narcotic Drugs and Psychotropic Substances Act, 1985 were not complied with.
Finding of the Court:
The court held that the recovery of the drugs was legal because it was conducted in the presence of a gazetted officer and that the provisions of Section 50 of the Act were complied with. The court also held that the non-compliance with Section 55 of the Act did not affect the recovery of the drugs. The court further held that the scope of inquiry in a bail application is limited to whether there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit an offence while on bail. The court also held that Section 37 of the Act is a special enactment that prevails over the general provisions of the Code of Criminal Procedure, 1973, and that the High Court's powers to grant bail are subject to the conditions mentioned in Section 37 of the Act.
Issues: 1. Whether the recovery of the drugs was illegal because it was not conducted by a gazetted officer? 2. Whether the provisions of Section 55 of the Narcotic Drugs and Psychotropic Substances Act, 1985 were complied with? 3. Whether the non-compliance with Section 55 of the Act affected the recovery of the drugs? 4. What is the scope of inquiry in a bail application? 5. Whether Section 37 of the Act prevails over the general provisions of the Code of Criminal Procedure, 1973?
Ratio Decidendi: 1. The recovery of the drugs was legal because it was conducted in the presence of a gazetted officer and the provisions of Section 50 of the Act were complied with. 2. The provisions of Section 55 of the Act were not complied with. 3. The non-compliance with Section 55 of the Act did not affect the recovery of the drugs. 4. The scope of inquiry in a bail application is limited to whether there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit an offence while on bail. 5. Section 37 of the Act is a special enactment that prevails over the general provisions of the Code of Criminal Procedure, 1973, and the High Court's powers to grant bail are subject to the conditions mentioned in Section 37 of the Act.
Final Decision: The bail application was dismissed.
1. By this order I dispose of the bail application filed by Balwinder Singh son of Chanan Singh resident of village Saidpur, Police Station, Noorpur Bedi, District Ropar (However, residing at the time of alleged offence in Indira, Colony, Jhabal Road, Amritsar), filed under S. 439 of the Code of Criminal Procedure read with S. 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in case FIR No. 140 dated 29-10-1996 under S. 22 of the said Act registered in Police Station C Division, Amritsar.
2. The allegations against the petitioner are that on 29-10-1996 at about 7-15 p.m. he was allegedly found in possession of 7 packets containing 10 injections each of Nourphin, three packets containing 10 injections each of Nourphin; two packets containing 50 injections each of Diazchem (2 ml each) : two packets containing 24 injections and 23 injections of Diazchem (10 ml) in the presence of Amrik Singh prosecution witness. Om Parkash S.I. and other police officials when the police party was being headed by Shri Sandeep Goyal, SHO, Police Station C Division, Amritsar. Before effecting the recovery from the person of the petitioner, a message was sent to Swinder Singh DSP who also arrived at the spot and thereafter above incriminating articles were recovered which became the subject-matter of FIR No. 140 referred to above.
3. The petitioner Balwinder Singh filed an application for bail in the Court of Addl. Sessions Judge, Amritsar who vide order dated 17-12-1996 dismissed the same holding as follows :-
"I have heard the learned counsel for the applicant and have perused the police file. From the heavy quantity of contraband recovered from the accused it appears that he is indulging in the sale of Narcotic drugs and Psychotropic Substances at a large scale. The recovery has been effected in the presence of independent witness namely Amrik Singh Sandhu, in the presence of SHO and the D.S.P. who are gazetted officers. There is every likelihood that he would abscond if released on bail. As such I do not find it a fit case to release the accused on bail and the application is dismissed."
4. Aggrieved by the said order dated 17-12-1996 passed by learned Addl. Sessions Judge, Amritsar, Balwinder Singh petitioner has moved the present bail application for his regular bail, which is being disposed of with the assistance rendered by Shri R. L. Batta, Sr. Advocate assisted by Shri J. S. Saggi, Advocate.
5. The first submission which was raised by the learned Sr. Counsel for the petitioner was that in this case the entire investigation conducted by the head of the police party was illegal and as such it justifies a case of bail. Elaborating his first submission Shri Batta submitted that the recovery was allegedly effected by Shri Sandeep Goyal, SHO C Division, Amritsar and in these circumstances he ought to have shed his hands for further investigation. In support of his contention, the learned counsel for the petitioner has drawn my attention to an order passed by this Court in Crl. Misc. No. 14798-M of 1996 Berbara Singh V/s. State of Haryana. I am not in agreement with the first submission of the learned Sr. counsel. A perusal of the ruqa would show that on receipt of secret information the SHO concerned associated Amrik Singh son of Joginder, Jat, resident of Gali Mulewali as an independent witness. The recovery in this case was chance recovery when the accused was found coming from the opposite direction. A perusal of the ruqa further reveals that the SHO concerned gave option to the petitioner Balwinder Singh whether the latter was interested for his search in the presence of some gazetted officer or magistrate. The accused exercised his option and he wanted that search of his person may be conducted in the presence of some gazetted officer. Accordingly S. Swinder Singh Dy. S. P. was informed on wireless to reach at the spot. Till the Dy. S. P. reached there. Again Dy S. P. enquired from Balwinder Singh petitioner whether he
