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IN THE HIGH COURT OF ALLAHABAD
S. R. SINGH
ZAKIR HUSAIN - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
CRI. M. B. A. 12660 Of 1996
Decided On : 03/10/1997
NDPS ACT - SECTION 50 - SEARCH AND SEIZURE - VIOLATION - BAIL - CONDITIONS: 1. Violation of Section 50 of the NDPS Act, which confers a right on the suspect/accused to be searched in the presence of a gazetted officer or magistrate, is a ground for bail under Section 37 of the Act read with Section 439 of the CrPC. 2. However, the violation of Section 50 does not ipso facto invalidate the trial or render the evidence obtained during the search inadmissible. 3. The court must consider the totality of the facts and circumstances of the case, including the illegality in search and seizure, to determine whether there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offence while on bail. 4. The court may take into account the quantity of the contraband seized, the time and place of arrest and seizure, and the accused's previous criminal record in determining whether to grant bail.
Fact of the Case:
The applicant was arrested for possession of 5 gms of heroin. The prosecution alleged that the applicant was apprehended after being informed by a Mukhbir Khas that he was in possession of narcotics. The applicant was searched by the police party without being offered the opportunity to be searched before a magistrate or a gazetted officer, as required by Section 50 of the NDPS Act.
Finding of the Court:
The court held that the violation of Section 50 of the NDPS Act was a ground for bail under Section 37 of the Act read with Section 439 of the CrPC. However, the court also held that the violation of Section 50 did not ipso facto invalidate the trial or render the evidence obtained during the search inadmissible. The court considered the totality of the facts and circumstances of the case, including the quantity of the contraband seized, the time and place of arrest and seizure, and the applicant's previous criminal record, and concluded that the applicant had made out a case for bail.
Issues: 1. Whether the violation of Section 50 of the NDPS Act is a ground for bail under Section 37 of the Act read with Section 439 of the CrPC. 2. Whether the violation of Section 50 renders the trial invalid or the evidence obtained during the search inadmissible.
Ratio Decidendi: 1. The court held that the violation of Section 50 of the NDPS Act is a ground for bail under Section 37 of the Act read with Section 439 of the CrPC. The court reasoned that Section 50 confers a valuable right on the person to be searched in the presence of a gazetted officer or magistrate if he so requires, which right necessarily implies a right to be informed of such right. 2. The court held that the violation of Section 50 does not ipso facto invalidate the trial or render the evidence obtained during the search inadmissible. The court reasoned that the manner in which the contraband is discovered may affect the factum of discovery, but if the factum of discovery is otherwise proved, then the manner becomes immaterial.
Final Decision: The court allowed the applicant's bail petition and ordered his release on bail on his executing a personal bond of Rs. 20,000 with two sureties each in the like amount.
( 1 ) THIS application for bail under Section 439, Cr. P. C. arises out of case Crime No. 107 of 1996 under Section 8/18/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act) registered at police station Dildarnagar, district Ghazipur.
( 2 ) ACCORDING to the prosecution story as set out in the First Information Report, Sub-Inspector Kale Deen Azad along with the two constables was present at Bahawra Crossing on 28-7-1996 for checking of the vehicles and fire arms and surveillance over anti-social elements. There he received an information from the Mukhbir Khas that a person in possession of narcotics was about to go from Dildar Nagar to Village Pachokhar and he could be arrested along with contraband article if steps were taken quickly. On the basis of the said information the police party led by Sub-Inspector Kale Deen Azad left for the destination and nabbed the applicant as soon as he reached at Pachokhar Tiraha at about 9-10 hours. On being apprehended the applicant was told that according to the information received by the police he was in possession of narcotics and if he so desires he could be produced before a Magistrate or a Gazetted Officer for search. The applicant, it is stated, apologetically declined the offer to be searched before a magistrate or a gazetted officer whereupon search of his person was conducted by the police party and five gms. of heroin is said to have been recovered from him. The applicant, according to the F. I. R. admitted the article so recovered to be heroin. It is stated that certain members of public has, in the meantime, reached the spot but they refused to be the witnesses of the search and recovery, whereupon search memo was prepared by the Sub-Inspector Kale Deen Azad. The defence is that the applicant has been falsely implicated in the case due to enmity with the police.
( 3 ) SRI D. K. Singh, learned counsel appearing for the applicant pressed for bail on the ground of violation of Sections 42, 50 and 57 of the Act. The learned counsel urged that the evidence of the alleged recovery of contraband from the applicant collected in breach of the provisions aforestated would invalidate the trial and if such evidence of recovery and seizure is ignored, there would be no reasonable ground for believing that the applicant is guilty of any offence punishable under the Act. Sri Manphool Singh, learned Additional Government Advocate refuted the submissions aforestated and urged that irregularity in search and seizure would not ipso facto invalidate the trial.
( 4 ) SO far as the submission based on the alleged breach of Section 42 is concerned, suffice is to say that it was not a case of search of a building, conveyance or enclosed place and hence it was not obligatory on the part of the officer conducting search to comply with the provisions of Section 42 of the Act. Seizure and arrest in the instant case would be governed by Section 43 of the Act. The requirement of recording the grounds of belief that arrest warrant or authorisation cannot be obtained without affording opportunity for concealment of evidence or facility for the escape of the offender as visualised by the mandatory provisions contained in the proviso to Section 42 (1) is not a condition precedent to a search, seizure and arrest under Section 43 of the Act. In State of Punjab v. Balbir Singh, 1994 (1) EFR 510 it has been held that Section 43 of the Act which deals with the power of arrest and seizure in public place is slightly different from the provisions of Section 42 in certain respects. Under this provision any officer empowered under Section 42 of the Act has the power to detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV of the Act and if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company wi
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