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1995 Supreme(All) 602
IN THE HIGH COURT OF ALLAHABAD
S. K. PHAUJDAR
MANISH KUMAR VARMA - Appellant
Versus
UNION OF INDIA - Respondents
CRI. M. B. 4523 Of 1994
Decided On : 05/23/1995
DAYA SHANKAR MISHRA, V.S.MISHRA
The validity of a remand order and the entitlement to bail when the mandatory provisions of the NDPS Act are violated.
Headnote:
BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTIONS 41(A), 41(2), 42(1), 50, 52, 57 - CODE OF CRIMINAL PROCEDURE, 1973 - SECTIONS 209, 309 - PREVENTION OF ILLICIT TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1988 - SECTION 13(7) - REMAND ORDER - VALIDITY - MANDATORY PROVISIONS OF NDPS ACT - VIOLATION - EFFECT - BAIL - ENTITLEMENT.
Fact of the Case:
The applicant was arrested under the NDPS Act for possession of 590 gms of heroin powder. He challenged the legality of his detention, arguing that the provisions of the NDPS Act and the CrPC were not followed during his arrest, search, and seizure. He also contended that the remand orders were not in accordance with the law.
Finding of the Court:
The court found that the applicant was produced before the court on 4-5-1995 and a fresh order was made under Section 309 CrPC directing him to be detained till 22/05/1995. This was a proper remand order and the applicant's present detention was legal.
Issues: 1. Whether the remand order was valid? 2. Whether the mandatory provisions of the NDPS Act were violated? 3. Whether the applicant was entitled to bail?
Ratio Decidendi: 1. The court held that the remand order dated 4-5-1995 was a proper remand order and the applicant's present detention was legal. 2. The court observed that the question of violation of the mandatory provisions of the NDPS Act was a matter of appreciation of evidence at the trial and the court could not engage itself in scrutinising the evidence or the materials thoroughly at this stage. 3. The court held that the applicant was not entitled to bail as his present detention was legal.
Final Decision: The court dismissed the bail application.
( 1 ) THIS is an application for bail. The applicant is in custody in criminal case No. 257 of 1994 under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1995 (hereinafter referred to as the NDPS Act ). The bail application has been pressed on the ground that his remand to jail custody by the trial court was not in accordance with law and, as such the whole detention has vitiated. It is also contended that no narcotic drug or psychotropic substance was recovered from him and he was falsely implicated. It was contended that the required provisions of the Act were not followed under the alleged arrest, and seizure and search and the subsequent steps by the authorities, and the provisions being mandatory, the violation thereof would entitle him to acquittal after trial and as such he was entitled to bail at this stage.
( 2 ) THE case against him as levelled according to the First Information Report, is that on 13-1-95 at about 2 p. m. the intelligence officers arrested the applicant near the door of Chandra Bali Maurya in village Kukurmutta, Police Station Marhhuadih, District Varanasi, and 590 gms. of heroine powder was recovered from his possession. The applicant allegedly confessed his. guilt before the authorities and further confessed that he was engaged in the drug trade.
( 3 ) IN the bail application it was contended that the story of arrest was a got up one. It was also contended that the alleged seizure list was not produced before any court before filing of the complaint. Nor any copy thereof was made over to the applicant. The bail application averred that the concerned authorities did not prepare any sample seal as required under the law, and the materials seized or any sample thereof was not produced before any court. No sample of the seal was sent to the Forensic Sciences Laboratory. The confession, if any, was obtained under coercion by the concerned authorities. It was submitted that the applicant was not given the choice to get himself searched before a gazetted officer or a Magistrate, as provided under the law. According to the applicant, provisions of the Code of Criminal procedure concerning searchand seizure were also not followed. And there was no proper remand order for his detention in custody.
( 4 ) AS the arrest was made by the intellegence officers of the Narcotic Control Bureau, a counter-affidavit was filed by the intellegence officers wherein the allegations levelled in the bail application were denied. According to the department, the search and seizure were done strictly in terms of the provisions of law and the recovery-memo was also sent to the remand Magistrate at the time of the first remand. The specimen of the seal was affixed in the original recovery memo as also on the carbon copy and the seized goods and samples were duly produced before the Magistrate, and there was no violation of Section 50 of the NDPS Act. His remand from time to time from the date of the first production was made under orders of court.
( 5 ) A rejoinder affidavit was filed on behalf of the applicant Wherein the averments made in the counter-affidavit were denied, and it was reiterated that the provisions of the NDPS Act were not valid.
( 6 ) THE applicant filed a supplementary affidavit on 29-3-95 wherein it was contended that in addition to the grounds relating to the merits, the applicant was entitled to bail on procedural grounds also as there was no proper order to interim remand. The affidavit was appended to by a copy of the order sheet from 30-11-94 till 24-9-95 to substantiate the points raised.
( 7 ) A further supplementary counter-affidavit was filed on behalf of the department in April, 1995, in reply to the aforesaid supplementary counter-affidavit. It was indicated in the supplementary counter-affidavit that the applicant Manish Kumar Vera was detained under the provisions of Prevention of the Illegal Traffic in Narcotic Drugs and Psychotropic Substances Act, 1995
