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1997 Supreme(All) 434
IN THE HIGH COURT OF ALLAHABAD
S. R. SINGH
DEVENDRA KUMAR MISRA - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
CRI. M. B. A. 11 Of 1997
Decided On : 04/15/1997
J.P.PANDEY
The provisions of Section 50 of the N. D. P. S. Act, 1985, Section 52-A of the Act, and Section 309 of the Cr. P. C. do not apply to the facts of the present case and the applicant is not entitled to be released on bail.
Headnote:
BAIL - N. D. P. S. ACT, 1985 - SECTION 50, 52-A, 309 - APPLICANT ARRESTED FOR POSSESSION OF CONTRABAND - APPLICANT'S CONTENTION THAT PROVISIONS OF SECTION 50 OF THE ACT WERE NOT OBSERVED IN COMPLIANCE - HELD, APPLICANT CANNOT DERIVE ANY BENEFIT EVEN IF HE WAS INFORMED OF HIS RIGHT UNDER SECTION 50 OF THE ACT AFTER THE SEARCH HAD ALREADY BEEN EFFECTED - NON-COMPLIANCE, IF ANY, OF SECTION 52-A OF THE ACT, WOULD NOT RENDER THE SEARCH AND SEIZURE ILLEGAL, NOR WILL IT DEGENERATE THE RECOVERY OF CONTRABAND INTO ONE BEING INADMISSIBLE IN EVIDENCE - APPLICANT'S CONTENTION THAT THERE WAS NO VALID ORDER OF REMAND OF THE APPLICANT FOR HIS JUDICIAL CUSTODY IN TERMS OF SECTION 309, CR. P. C. - HELD, THE ORDER DATED 14-10-1996 (ANNEXURE S. A. 1) HAS THE CHARACTERISTIC OF A WARRANT OF AUTHORISATION ISSUED TO THE JAIL SUPERINTENDENT - THE REMAND ORDER AS NOTED ON THE ORDER-SHEET OF THE CASE, EXPLICITLY INDICATES THAT THE APPLICANT WAS REMANDED TO JUDICIAL CUSTODY FROM 14-10-1996 TO 26-10-1996 ON WHICH DATE THE CASE WAS ADJOURNED BY THE SESSIONS JUDGE - IN THIS FACT SITUATION, THE DECISION IN RAGHVENDRA SINGH V. STATE, 1983 ALL LJ 611, RELIED UPON BY THE LEARNED COUNSEL IS OF NO ASSISTANCE - THE APPLICANT IN THE INSTANT CASE HAS BEEN REMANDED BY THE SESSIONS COURT FROM DATE TO DATE AND NOT "UNTIL THE CONCLUSION OF THE TRIAL" - ABSENCE OF SPECIFIC ORDERS OF REMAND ON 8-11-1996 AND 9-12-1996 IS NOT SUSCEPTIBLE OF DETENTION BEING BRANDED ILLEGAL AND THE PETITIONER CANNOT CLAIM ENTITLE- MENT TO BE ENLARGED ON BAIL ON THAT COUNT - THE JUDICIAL CUSTODY OF THE APPLICANT PENDING TRIAL IS NOT IN ANY MANNER VITIATED - IN THE CIRCUMSTANCES, THE APPLICANT IS NOT ENTITLED TO BE RELEASED ON BAIL IN THAT HE HAS FAILED TO DISCHARGE THE BURDEN PLACED ON HIM BY SECTION 37 OF THE ACT THAT HE IS NOT GUILTY OF THE OFFENCE.
Fact of the Case:
The applicant was arrested for possession of contraband under the N. D. P. S. Act, 1985. The applicant contended that the provisions of Section 50 of the Act were not observed in compliance and that there was no valid order of remand for his judicial custody in terms of Section 309, Cr. P. C.
Finding of the Court:
The court held that the applicant cannot derive any benefit even if he was informed of his right under Section 50 of the Act after the search had already been effected. The court also held that non-compliance, if any, of Section 52-A of the Act, would not render the search and seizure illegal, nor will it degenerate the recovery of contraband into one being inadmissible in evidence. The court further held that the order dated 14-10-1996 (Annexure S. A. 1) has the characteristic of a warrant of authorisation issued to the Jail Superintendent and that the applicant has been remanded by the Sessions Court from date to date and not "until the conclusion of the trial". The court also held that the absence of specific orders of remand on 8-11-1996 and 9-12-1996 is not susceptible of detention being branded illegal and that the judicial custody of the applicant pending trial is not in any manner vitiated.
Issues: 1. Whether the provisions of Section 50 of the N. D. P. S. Act were observed in compliance? 2. Whether there was a valid order of remand for the applicant's judicial custody in terms of Section 309, Cr. P. C.?
Ratio Decidendi: 1. The court held that the applicant cannot derive any benefit even if he was informed of his right under Section 50 of the Act after the search had already been effected, as the search in the instant case was not the result of any prior information and the recovery of the contraband was a chance recovery. 2. The court held that non-compliance, if any, of Section 52-A of the Act, would not render the search and seizure illegal, nor will it degenerate the recovery of contraband into one being inadmissible in evidence. 3. The court held that the order dated 14-10-1996 (Annexure S. A. 1) has the characteristic of a warrant of authorisation issued to the Jail Superintendent and that the applicant has been remanded by the Sessions Court from date to date and not "until the conclusion of the trial". 4. The court also held that the absence of specific orders of remand on 8-11-1996 and 9-12-1996 is not susceptible of detention being branded illegal and that the judicial custody of the applicant pending trial is not in any manner vitiated.
Final Decision: The court rejected the application for bail.
( 1 ) THIS application for bail has its genesis in case crime No. 139 of 1996 and 140 of 1996 under Section 8/20 (2) 23 of the N. D. P. S. Act registered at P. S. Shoharatgarh Distt. Sidharthnagar. The incident is of 21-9-1996. On that date around 15. 30 hours, according to the prosecution case, a police party of P. S. Shoharathgarh was conducting vehicle checking at the Khunuwa inter-section. One of the vehicles checked by the Police at the Inter-section, was the Jeep bearing registration No. MMY 3117, which was on its way to Naugarh. On a diligent search of the passengers in the Jeep, the applicant and co-accused Ram Vilas were found to have been in possession of contraband namely, Charas contained in plastic cane and plastic bag respectively each weighing 7 kilos. Both the accused persons blabbed to the Police that they had smuggled the contraband from Nepal without any authority. The police accordingly arrested and asked them if they wanted to be searched in the presence of a Magistrate/gazetted Officer. The prosecution case further is that it is only after eliciting a word from the accused that they did not want to be searched in the presence of the Magistrate/gazetted officer, the case was accordingly registered against both of them as stated supra.
( 2 ) SRI D. S. Misra, appearing for the applicants, to begin with, mooted the point that provisions of Section 50 of the N. D. P. S. Act were not observed in compliance, but soon retracted and relented on being pointed out that the search in the instant case was not the result of any prior information and the recovery of the contraband was a chance recovery and in the circumstances, the applicant cannot derive any benefit even if he was informed of his right under Section 50 of the N. D. P. S. Act after the search had already been effected. As a matter of fact, right to be searched in the presence of a Magistrate or a Gazetted Officer, can be taken aid of by a suspect only when the suspect is apprehended on the basis of a prior information of the contraband being smuggled.
( 3 ) THE learned counsel for the applicant then switched gear to another submission of there being no compliance with the requirements of Section 52-A of the Act. This submission of the learned counsel too is sans any substance. Section 52-A of the Act postulates disposal of seized Narcotic Drugs and Psychotropic Substances and lays down the procedure therefor. Non-compliance, if any, of Section 52-A of the Act, would not render the search and seizure illegal, nor will it degenerate the recovery of contraband into one being inadmissible in evidence. That apart, I am of the view that non-compliance, if any, of Section 52-A would not render effective the embargo on the Courts powers to grant bail.
( 4 ) SRI D. S. Misra, then mooted the submission that there was no valid order of remand of the applicant for his judicial custody in terms of Section 309, Cr. P. C. and his unabated detention in jail was, therefore, unauthorised. To shore up his submission, the learned counsel placed reliance on the averments made in the Suppl. Affidavit and the order dated 14-10-1996 (Annexure SA 1) of the Sessions Judge, Sidharthnagar, thereby, authorising Jail Superin-tendent Basti, to keep the applicant in its custody until the conclusion of the sessions trial and to produce him on the dates set down by the Court. The learned counsel canvassed that unlike the power of Magistrate under Section 209, Cr. P. C. , the Court has no power under Section 309, Cr. P. C. to remand the accused to custody until the conclusion of the trial. " Reliance was placed on Raghvendra Singh v. State, 1983 All LJ 611.
( 5 ) SRI Sudhir Mehrotra, learned A. G. A. urged that Annexure S. A. 1 relied on by the applicant is not the order of remand but warrant of custody. He produced certified copy of the orders noted on the remand file of the Magistrate as well as the remand orders passed by the Sessions Court on various dates to which the
