1992 Supreme(All) 495

IN THE HIGH COURT OF ALLAHABAD
K. G. Bhargava
GANGA RAM - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
Cri. Misc. Case 3072b Of 1992
Decided On : 09/03/1992

The search of an accused person under Section 51 of the Code of Criminal Procedure, 1973 does not require the signature of the witnesses on the recovery memo or the giving of a copy of the memo to the accused. These are mere irregularities which will not entitle the accused to claim bail.

Headnote:

BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 50, 51 - CODE OF CRIMINAL PROCEDURE, 1973 - SECTION 51 - SEARCH AND SEIZURE - IRREGULARITIES IN RECOVERY MEMO - NOT A GROUND FOR BAIL - COURT DISCUSSES THE PROVISIONS OF SECTION 50 OF THE ACT AND SECTION 51 OF THE CODE AND HOLDS THAT THE SEARCH OF AN ACCUSED PERSON UNDER SECTION 51 OF THE CODE DOES NOT REQUIRE THE SIGNATURE OF THE WITNESSES ON THE RECOVERY MEMO OR THE GIVING OF A COPY OF THE MEMO TO THE ACCUSED - THESE ARE MERE IRREGULARITIES WHICH WILL NOT ENTITLE THE ACCUSED TO CLAIM BAIL - COURT ALSO HOLDS THAT THE FACT THAT THE RECOVERY MEMO WAS PREPARED IN THE TORCH LIGHT IS A QUESTION OF FACT WHICH CAN BE DEALT WITH AFTER THE EVIDENCE IS LED.

Fact of the Case:

Three bail applications were filed by Ganga Ram, Tahir, and Pratap Verma, who were arrested under the Narcotic Drugs and Psychotropic Substances Act, 1985. The applicants argued that the recovery memos prepared in their cases were not in accordance with the provisions of Section 50 of the Act read with Section 51 of the Code of Criminal Procedure, 1973. The State argued that the search memos were in accordance with Section 51 of the Code and that any irregularities in the recovery memos could not be a ground for bail.

Finding of the Court:

The court held that the search of an accused person under Section 51 of the Code does not require the signature of the witnesses on the recovery memo or the giving of a copy of the memo to the accused. These are mere irregularities which will not entitle the accused to claim bail. The court also held that the fact that the recovery memo was prepared in the torch light is a question of fact which can be dealt with after the evidence is led.

Issues: 1. Whether the recovery memos prepared in the cases were in accordance with the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with Section 51 of the Code of Criminal Procedure, 1973? 2. Whether the irregularities in the recovery memos could be a ground for bail?

Ratio Decidendi: 1. Section 51 of the Code of Criminal Procedure, 1973 provides that the procedures of the Code shall apply, in so far as they are not inconsistent with the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, to all warrants issued and arrests, seizure and issuance of warrants. 2. Section 51 of the Code deals with the search of arrested persons. Sub-Clause 1 of this section is relevant for the purposes of the present controversy which is being reproduced as under: - 51 Search of arrested person.- (1) Whenever a person is arrested by a police officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail, and whenever a person is arrested without warrant, or by a private person under a warrant, and cannot legally be admitted to bail, or is unable to furnish bail, the officer making the arrest or when the arrest is made by a private person the police officer to whom he makes over-the person arrested, may search such person, and place in safe custody all articles, other than necessary wearing-apparel, found upon him and where any article is seized from the arrested person, a receipt showing the articles taken in possession by the police officer shall be given to such person. 3. This provision of the search of the person comes in operation only when a search of a person who has been arrested earlier is taken. Search can be taken either upon a warrant or without a warrant. 4. This section also does not provide that signatures of the witnesses will be taken on the recovery memo after the search of a person is taken. It merely provides that a receipt showing the articles taken in possession by the police officer shall be given to such person; after his search has already been taken. This section does not specifically provide or cast a duty upon the searching officer to provide a copy of the search memo. The searching officer is only bound to give a receipt which may indicate the articles which have been recovered from the possession of the person concerned and of which a seizure has been made.

Final Decision: All three bail applications were rejected.