1. Heard Sri Daya Shankar Mishra, Senior Advocate, assisted by Sri Chandrakesh Mishra, Advocate, on behalf of applicant and Sri Ashish Pandey, learned counsel appearing on behalf of Narcotic Control Bureau, Lucknow.
2. This Criminal Misc. Bail Application has been preferred by the applicant, Krishna Gopal, in Case Crime No. 28 of 2018, under Section 8/20/27-A/29/60(III) of N.D.P.S. Act, Police Station- Vaidpura, District- Etawah.
3. The allegations against the applicant are that a secret information was received from Zonal Director, Narcotic Control Bureau, Lucknow (hereinafter referred to as 'NCB') by Sri Narendra Kumar, Intellegence Officer, NCB, Lucknow that on 17.12.2018 at Etawah-Saifai Road, applicant and six other accuseds are proceeding for delivery of ganja; that after reducing to writing the aforesaid information, the Zonal Director, NCB, constituted a team which intercepted one truck and another Maruti Swift Desire Car on the informed place; that in the aforesaid vehicles Vinay Kumar (truck owner), Sarvesh Kumar (truck driver), Brijesh (helper of truck) and Shamshad Khan, were sitting inside the truck and Prashant Singh, Gulfan and Krishna Gopal (applicant) were sitting inside the aforesaid car; that all the accuseds were apprised of their legal rights as per Section 50 of the NDPS Act and they were searched before a Gazetted Officer as per their wish; that nothing was recovered from personal search of the accuseds but from the Swift Desire Car, wherein the applicant was sitting along with co-accuseds, Prashant Singh and Gulfam, four plastic gunny bags were recovered; that from the aforesaid bags green substance was recovered which on testing was found positive for ganja; that the weight of the aforesaid ganja recovery was found to be 204.50 kg; that from the search of the truck aforesaid 12 gunny bags having 453.50 kg of ganja was recovered; that the description of the packets recovered from the Swift Desire car were L1P1 (51.700 kg), L1P2 (50.00 kg), L1P3 (51.300 kg) and L1P4 (51.500 kg); that from the truck 12 gunny bags of ganja were recovered. Samples of 24 gm of each were taken out and marked as L1S1, L2S2, L3S1, L3S2, L4S1, L4S2, L5S1, L5S2, L6S1, L6S2, L7S1 and L7S2; that statements of all the 7 accuseds were recorded under Section 67 of NDPS Act wherein they confessed to their involvement in illicit trafficking of ganja; that they were arrested and produce before ADJ-7, Etawah along with seized truck and were remanded to the Judicial custody; that samples sent for examination were found positive for ganja vide report dated 28.01.2019 of the Government Opium and Alkaloid Works, Ghazipur; that mobile call details of the accuseds were collected which proves that they were involved in the alleged offence and were in close contact with each other. Hence, the complaint was instituted against the applicants before the District and Sessions Judge, Etawah.
4. Learned Senior Counsel for the applicant has submitted that as per Section 42 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as 'NDPS Act') where any officer (superior in rank to a Sepoi or constable) of the department of Narcotics receives information given by any person and taken down in writing that any narcotic drug, in respect of which offence punishable under the NDPS Act has been committed and is kept or concealed in any conveyance, he may on necessary of such material, arrest any person involved in the Act. Where the officer has taken down an information in writing he shall sent a copy of the same to his immediate official superior within 72 hours.
5. In the present case the information received by the Intelligence Officer from his Zonal Officer was not reduced in writing nor it was communicated to his superior officer within 72 hours of recording of the same. He has placed reliance on the judgment of the Apex Court in the case of State of Rajasthan vs. Jag Raj Singh @ Hansa, AIR 2016 SC 3041, he has referred to paragraph nos. 16, 17 and 18 of the aforesaid judgment:-
16. Explanation to Section 43 defines expression "public place" which includes any public conveyance. The word "public conveyance" as used in the Act has to be understood as a conveyance which can be used by public in general. The Motor Vehicles Act, 1939 and thereafter the Motor Vehicles Act, 1988 were enacted to regulate the law relating to motor vehicles. The vehicles which can be used for public are public Motor Vehicles for which necessary permits have to be obtained. Without obtaining a permit in accordance with the Motor Vehicles Act, 1988, no vehicle can be used for transporting passengers. In the present case, it is not the case of the prosecution that the jeep HR-24 4057 had any permit for transporting the passengers. The High Court has looked into the evidence and come to the conclusion that there was no material to indicate that there was any permit for running the jeep as public transport vehicle. The High Court has further held that even Kartara Ram who as per owner of the vehicle Veera Ram was using the vehicle, do not support that the jeep was used as public transport vehicle. The High Court held that personal jeep could not be treated as public transport vehicle. Following observations were made by the High Court:
"Kartara Ram is produced as PD-5,who has deposed the statement that Vira Ram is his brother-in-law (Saala), on whose name jeep bearing No.HR 24 4057 is lying registered. He had employed Inderjit singh as driver for that jeep. Person namely Krishan has never been employed as driver. This witness has been declared hostile and he has been examined too, who does not support the prosecution case. In this manner, Viraram is the owner of the jeep. According to him he had given the jeep to Kartara Ram, but Kartara Ram has not stated anywhere in is statement that this jeep was given to him and he used the same as Public Transport Vehicle. Since powder of opium was caught in this jeep and even Notice Exh. P-6 was also served upon him by the police, he with a view to save himself, can also depose such statement that Kartara used to use the jeep as Public Transport Vehicle , whereas Kartara Ram PD-5 does not affirm this fact. Jeep was personal, it is clear on the record. In this manner, just on this ground that he has given the jeep to his brother-in-law and he used it to carry the passengers, the personal jeep could not be treated as public transport vehicle. However, the fact that jeep is used to carry the passengers has not been affirmed from the statements of Kartara Ram. There is no evidence on record on the basis of which it could be stated that jeep was public transport vehicle and they have the permit for it, rather it was the private vehicle and it is stated that Vira Ram himself is the owner of that vehicle"
17. There is nothing to impeach the aforesaid findings. We have also perused the statement of Vira Ram in which statement he has never even stated that he has any permit for running the vehicle as transport vehicle. He has stated that "..... I had given this jeep to Kartara Ram resident of ...... who is my relative to run it for transporting passengers" Admittedly the jeep was intercepted and was seized by the police. In view of the above, the jeep cannot be said to be a public conveyance within the meaning of Explanation to Section 43. Hence, Section 43 was clearly not attracted and provisions of Section 42(1) proviso were required to be complied with and the aforesaid statutory mandatory provisions having not been complied with, the High Court did not commit any error in setting aside the conviction.
18. There is one more aspect which needs to be noted. The present is a case where prosecution himself has come with case that secret information was received from informer which information was recorded in Exh. P-14 and Exh. P-21 Roznamacha and thereafter the Station House Officer with police party proceeded towards the scene. The present is not a case where the Station House Officer suddenly carried out search at a public place. The Station House Officer in his statement has also come up with the facts and case to prove compliance of Section 42. When search is conducted after recording information under Section 42(1), the provisions of Section 42 has to be complied with. This Court in Directorate Of Revenue & Another vs Mohammed Nisar Holia, (2008) 2 SCC 370, had occasion to consider Sections 41,42 and 43 explanation. Following was stated in paragraph 14:
"14. Section 43, on plain reading of the Act, may not attract the rigours of Section 42 thereof. That means that even subjective satisfaction on the part of the authority, as is required under sub-section (1) of Section 42, need not be complied with, only because the place whereat search is to be made is a public place. If Section 43 is to be treated as an exception to Section 42, it is required to be strictly complied with. An interpretation which strikes a balance between the enforcement of law and protection of the valuable human right of an accused must be resorted to. A declaration to the effect that the minimum requirement, namely, compliance of Section 165 of the Code of Criminal Procedure would serve the purpose may not suffice as non-compliance of the said provision would not render the search a nullity. A distinction therefor must be borne in mind that a search conducted on the basis of a prior information and a case where the authority comes across a case of commission of an offence under the Act accidentally or per chance............."
6. He has submitted that the recovery of the alleged contraband is from private Swift Desire car and therefore the provision of Section 42 of NDPS Act were fully attracted to the case. Such an averment has been made in a paragraph 21 of the bail application and in paragraph 22 it has also been stated that the provision of Section 41 of NDPS Act has also not ben complied. He has pointed to the reply given to the paragraph nos. 21 and 22 of the bail application in paragraph 14 of the counter affidavit filed on behalf of the Narcotics Control Bureau. It has been stated in the paragraphs 14 of the counter affidavit that the provision of Section 41 and 42 of NDPS Act have been fully complied and in this case provision of Section 43 of NDPS are applicable. Regarding compliance of Section 41 NDPS Act it has been stated that the Officer of NCB is empowered to direct search and seizure in any conveyance, place or building, if he has reason to believe that some offence has been committed under NDPS Act and therefore the provision stands complied.
7. Learned Senior Counsel has argued that the averments in paragraph 14 of the counter affidavit are contradictory. On the one hand it has been averred that Section 42 of NDPS Act has been complied and on the other hand it has been averred that the case is covered under Section 43 of NDPS Act. It is not clear from the counter affidavit what is the stand of the other side.
8. The next submission made by the learned Senior Counsel for the applicant is that there is gross discrepancy in weights of the samples taken at the time of the seizure and received after testing from laboratory. He has vehemently argued that there is clear averment in the complaint that 7 samples of 24 gm each were taken out from seized ganja and from report of the Government Opium and Alkaloid Works, Ghazipur dated 28.01.2019, it is clear that the sample L1S1 weighed 31.16 gm and after testing it got reduced to 25.30 gm, sample L2S1 was 28.80 gm which became 18.15 gm after testing. Similarly, there is difference in the weight of other 5 samples. He has submitted that the seized contraband was tampered and its weight was increased from 24 gm to 35 gm in the sample since only the plastic covering wherein the sample was sent will not add more than 10 gm to the sample drawn. He has relied upon the judgment of the Apex Court in the case of Rajesh Jagdamba Avasthi vs State of Goa- respondent, AIR 2005 SC 1389 and has relied upon paragraph 14 thereof quoted herein below:-
14. We do not find it possible to uphold this finding of the High Court. The appellant was charged of having been found in possession of Charas weighing 180.70 gms. The Charas recovered from him was packed and sealed in two envelopes. When the said envelopes were opened in the laboratory by Junior Scientific Officer, PW-1, he found the quantity to be different. While in one envelope the difference was only minimal, in the other the difference in weight was significant The High Court itself found that it could not be described as a mere minor discrepancy. Learned counsel rightly submitted before us that the High Court was not justified in upholding the conviction of the appellant on the basis of what was recovered only from envelope 'A' ignoring the quantity of Charas found in envelope 'B'. This is because there was only one search and seizure, and whatever was recovered from the appellant was packed in two envelopes. The credibility of the recovery proceeding is considerably eroded if it is found that the quantity actually found by PW-1 was less than the quantity sealed and sent to him. As he rightly emphasized, the question was not how much was seized, but whether there was an actual seizure, and whether what was seized was really sent for chemical analysis to PW-1. The prosecution has not been able to explain this discrepancy and, therefore, it renders the case of the prosecution doubtful.
9. On the strength of the aforesaid judgment of the Apex Court he has submitted that the difference in the quantity of the samples renders the prosecution case doubtful and therefore the applicant may be enlarged on bail at this stage.
10. The third submission of the learned Senior Counsel for the applicant is that the provision of Section 50 of the NDPS Act have not been complied in this case. The applicant was only informed about the option to be searched in the presence of Gazetted Officer. He was not informed that it was his legal right to be searched before a Gazetted Officer. He has relied upon the judgment of the Apex Court in the case of Narcotic Control Bureau vs. Sukh Dev Raj Sodhi wherein the Apex Court has held in paragraph nos. 5 and 6 of the aforesaid judgment as follows:-
"5. The obligation of the authorities under Section 50 of the NDPS Act has come up for consideration before this Court in several cases and recently, the Constitution Bench of this Court in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat [(2011) 1 SCC 609] has settled this controversy. The Constitution Bench has held that requirement of Section 50 of the NDPS Act is a mandatory requirement and the provision of Section 50 must be very strictly construed.
6. From the perusal of the conclusion arrived at by this Court in Vijaysinh Chandubha Jadeja's case, it appears that the requirement under Section 50 of the NDPS Act is not complied with by merely informing the accused of his option to be searched either in the presence of a gazetted officer or before a Magistrate. The requirement continues even after that and it is required that the accused person is actually brought before the gazetted officer or the Magistrate and in Para 32, the Constitution Bench made it clear that in order to impart authenticity, transparency and creditworthiness to the entire proceedings, an endeavour should be made by the prosecuting agency to produce the suspect before the nearest Magistrate."
11. The last submission made by learned Senior Counsel for the applicant is that Section 32-A of NDPS Act has been interpreted by the Apex Court. He has submitted that relying on the same that only in so far as it took away the right of the courts to suspend the sentence awarded to convict under the Act, Supreme Court clarified in the case of Dadu @ Tulsidas vs. State of Maharashtra, (2000) 8 SCC 437 that the entire section is not invalid. He has submitted that the Apex Court has upheld the power of the court to suspend the sentence awarded to a convict and therefore the grant of bail to an accused under NDPS Act lies within the jurisdiction of the court and there is no bar to the grant of bail under Section 37 of NDPS Act.
12. Sri Ashish Pandey, learned counsel for the NCB has vehemently opposed the argument raised by the Senior Counsel for the applicant. He has submitted that the submission that there is non-compliance of Section 42 of NDPS Act is without any basis. He has pointed out that in the present case information was received by Zonal Director, NCB, Lucknow and he got the team prepared through Intelligence Officer and therefore there was no requirement for him to inform any superior Officer as per Section 42(2) of NDPS Act. The Zonal Director was himself a Gazetted Officer and he was not required to communicate anyone since on his direction the search team was constituted.
13. Learned counsel for the N.C.B. has relied upon the judgment of the Apex Court in the case of G. Srinivas Goud vs. State of Andhra Pradesh (2005) 8 SCC 183, and has made reliance on paragraph nos. 8, 9 and 10 as follows:-
8. The question for our consideration is: whether it is necessary for officers of the gazetted rank to comply with sub-section (2) of Section 42, i.e. send the information taken down in writing by the officers to immediate official superior within seventy two hours? According to the learned counsel for the appellants Section 42(2) is mandatory and covers all officers including officers of gazetted rank. It does not make any distinction between a gazetted and a non-gazetted officer and, therefore, all empowered officers must comply with sub-section (2) of Section 42.
9. It will be seen from Section 41(2) that it refers to only officers of gazetted rank and it is such officers who can authorise their subordinates, not below the rank of peon, sepoy or constable, to carry out arrest, search or seizure. The function of arrest, search and seizure carried out under Section 42(1) is by officers who do not have warrants or authorization in their hands before proceeding to take action. This is as per the heading of the Section which reads: "Power of entry, search, seizure and arrest without warrant or authorization". Under Section 41 it is the specified Magistrates who issue warrants of arrest and it is officers of gazetted rank who give authorisation in favour of their juniors. Provisions of sub- section (2) of Section 42 are meant to cover cases falling under Section 42(1). Therefore, in our view, the requirement under Section 42(2) need not to be extended to cases of arrest, search and seizure by officers of gazetted rank. The officer of gazetted rank while authorising junior officers under Section 41(2) knows what he is requiring them to do and, therefore, there is no need for reporting. For this reason Section 41 does not contain any such requirement. The need for reporting under Section 42(2) arises because the officer proceeds without authorisation in terms of Section 41(1)or 41(2). The requirement of informing the immediate official superior under Section 42(2), in our view, has to be confined to cases where the action is without authorisation by officers below the rank of gazetted officers.
10. It will be anomalous to say that officers of gazetted rank who are conferred with power to authorise junior officers to carry out arrest, search and seizure, are required to report to their superior officers when they carry out arrest, search or seizure on their own. As already seen the rationale for this provision of informing superiors appears to be that when the arrest, search and seizure is without authorisation by gazetted rank officers, the officers taking action must keep their superiors informed. The superior officers must know about the action taken by their subordinates. However, the position of gazetted rank officers, in view of their rank and seniority and power to authorise subordinates to proceed to action, is totally different. They are the source of power of authorization. The gazetted rank officers enjoy special position and privileges under the Act. They need not be equated to officers taking action without authorisation or warrants. The requirement of sending information to superior officers under sub-section (2) of Section 42 cannot be insisted upon in their case. There is no bar in the statute to functions of arrest, search and seizure being carried out by the officers of the gazetted rank themselves. When they act on their own, they do not have to report to their seniors on such things.
14. Reply to the Second argument made on behalf of the applicant has been submitted by the counsel for the NCB stating that there is no anomaly in the samples collected by the search team in the weight of the samples collected by the search team and sent for the examination when compared to the contraband left and returned after examination by the laboratory. He has clarified that when the samples of 24 gm was sent to the laboratory in the packet, its weight increased by about 10 gm because of the weight of the packet containing ganja and after it was subjected to test some quantity got in testing and therefore when the sample was returned it was reduced in weight by few grams. It cannot be considered as an anomaly fatal to the prosecution case. When the contraband is tested in laboratory, certain amount of the material gets wasted in chemical examination and this cannot be considered against the prosecution. He has submitted that the facts of the case relied upon by the counsel for the applicant in Rajesh Jagdamba Avasthi (supra) are distinguishable as clear from paragraph 6 of the judgment itself are as follows:-
"6. Counsel appearing on behalf of the appellant has urged before us the following submissions. Firstly, he submitted that the seal which was put on the two envelopes soon after alleged recovery of Charas was different from the seal found on the sealed envelopes by the Junior Scientific Officer (PW-1) who conducted the chemical analysis of the substance forwarded to him in the two envelopes. It was, therefore, not certain whether what was sent to the laboratory for chemical analysis was the same substance which was seized and sealed by PW-4 on 14.12.1994. Secondly, he submitted that the evidence on record disclosed that the quantity of Charas found in the two envelopes by the Junior Scientific Officer (PW-1) was quite different from the quantity that was sealed in those two envelopes. As against 100 gms. said to have been recovered from the shoe on the right fool and sealed in envelope 'A', the quantity found by PW-1 was only 18.16 gms., whereas in envelope B in which 115 gms. of Charas is said to have been packed and sealed, the quantity found was only 82.54 gms. This also raised a serious doubt as to whether the substance allegedly seized and sealed had been sent for chemical analysis. Lastly, it was submitted that the manner in which the seized substance was handled by the investigating agency did not rule out the possibility of manipulation, and that in the facts and circumstances of the case such manipulation was writ large in the face of the evidence on record."
15. Therefore he has concluded that the judgment relied upon in the case of Rajesh Jagdamba Avasthi (Supra) is not applicable to the fact of this case. In the present case the sample of 24 gm, when opened were not found to be less than 24 gm and only about 10 gm of variation took place in the weight after testing of the sample by the chemical examination in laboratory. There is no such drastic variation which goes to show that the sample of 24 gm sent for examination was found to be less than 24 gm.
16. Counsel for the N.C.B., in reply to the 3rd submission made by the counsel for the informant, has stated that in the present case there is no dispute regarding compliance of Section 50. Here all the accuseds, including the applicant were informed about their rights to be searched before a Gazetted Officer in writing and all the accuseds expressed there desire to be searched before the Gazetted Officer. On their request, Sri Shyam Kant, Deputy Superintendent of Police, S.T.F., was called and search of the accuseds were conducted in his presence. Nothing was found from their physical possession but constructive and conscious possession of the contraband from the truck and the Swift Desire car was proved.
17. Regarding the last submission made by the counsel for the applicant it has been submitted that there is no relevance of Section 32-A N.D.P.S. Act at this stage since it becomes effective only after conviction and sentence of the accuseds by the court. Section 37 of NDPS Act provides that the court should be satisfied that there are reasonable grounds for believing that the accused is not guilty of alleged offence and he is not likely to commit any offence while on bail. He has further submitted that the Senior Counsel for the applicant has not been able to make out any good ground for enlargement of the applicant on bail and all the submissions are legally misconceived and deserve to be turned down.
18. After orders were reserved in this case, Sri Daya Shankar Mishra, learned Senior Counsel for the applicant, has supplied the following three judgments in support of the case of applicant, (1) State of Uttranchal vs. Rajesh Kumar Gupta 2007(1) SCC 355 (2) Surender Kumar Khanna vs. Intelligence Officer, Directorate of Revenue Intelligence, AIR 2018 SC 3574 (3) Rajan @ Kali Baks Singh vs. Union of India passed by this court in Criminal Misc. Bail Application No. 2083 of 2019.
19. The case of State of Uttranchal (Supra) was a case under Rule 67-A of the Narcotic Drugs and Psychotropic Substances Rules, 1985 which permits the use of Narcotic substances for limited medical requirement and corresponding possession of Form-7. In the aforesaid case the Apex Court found that the possession of drug by the accused was in compliance of Rule 67-A aforesaid therefore the applicant was enlarged on bail by the High Court and Apex Court refused to interfere with the same. In the present case the facts are different and the amount of the contraband possessed by the applicant was much above the permissible commercial quantity and there was no explanation for the same placed on record.
20. In paragraph 38 of the aforesaid judgment the Apex Court has held as follows:-
"The Respondent is charged with a grave offence. It was, therefore, all the more necessary to apply the principles of law strictly. A person cannot be denied the right of being released on bail unless a clear case of application of the 1985 Act is made out. He might have committed an offence which repulses out morality. He may ultimately be found guilty even for commission of an offence under the 1985 Act, but in a case of this nature when prima facie the provisions of the said Act are not found applicable particularly in view of the fact that he has been in custody for a period of more than two years now, in our opinion, it is not a fit case where we should exercise our discretionary jurisdiction under Article 136 of the Constitution of India."
21. The second judgment in the case of Surender Kumar Khanna (Supra) relates to a case of the Apex Court where apart from confessional statement of the accused there was no material suggesting involvement of the accused in the crime therefore his conviction was set aside. In the present case apart from confessional statement of the accused along with two other co-accuseds, there was recovery of 204.50 kg of ganja. The accused was apprised of his legal right as per Section 50 of the N.D.P.S. Act and was searched before a Gazetted Officer as per his wish. Recovery was made from the Swift Desire car wherein the accused was sitting along with two co-accuseds. The call details of the accuseds who talked with each other was also recovered. There is no material on record to suggest that the applicant ever disputed his statement under Section 67 of NDPS Act before the court or any authority soon after it was recorded by the NCB. The contraband recovered has been found to be ganja by the forensic expert. The trial is yet to take place and the prosecution witnesses are yet to be produced. Prima facie case is made out against the applicant and therefore no benefit of the judgment in the case of Surender Kumar Khanna (supra) can accrue to the applicant.
22. The third judgment in the case of Rajan @ Kali Baksh (supra) relates to a case where no recovery was made from the accused. The recovery of contraband was made by the team of NCB at Basti on 28.07.2018. After two months on 28.09.2018 the applicant was arrested from Amausi Airport, Lucknow while he was about board flight for Hyedrabad. The accused was being connected to the recovery of contraband at Basti two months ago on the basis of his confessional statement under Section 67 of NDPS Act and calls allegedly made from two mobile numbers allegedly belonging to the applicant. There was no other corroborating evidence. Accused had stated that NCB had not been able to prove that two mobiles allegedly used in the crime belong to him. Even the calls were made to one, Arun Kumar Dixit, alleging him to be driver of the vehicle where from the contraband was recovered but when the truck with contraband was recovered at Basti the driver was stated to be Sudhakar Mishra. There was evidence on record to prove that Sudhakar Mishra was driving the vehicle when it was intercepted by the team of NCB at Basti and there was no explanation on record how Arun Kumar Dixit was implicated as driver of vehicle in the complaint filed by NCB. Clearly the facts of the case of Rajan @ Kali Baksh Singh are drastically different from the present case.
23. The three case laws relied by the Senior Counsel for the applicant will not help the applicant in the present case.
24. After hearing the rival contentions this court finds that the jurisdiction of this court is circumscribed by Section 37 of NDPS Act. No material has been placed before this court to satisfy the court that there are any reasonable grounds for believing that the applicant is not guilty of the alleged offence and he is not likely to commit any offence while on bail.
25. Hon'ble Apex Court in Satpal Singh vs. State of Punjab, (2018) 13 SCC 813; in paragraph no.3 has held as follows:-
"3. Under Section 37 of the NDPS Act, when a person is accused of an offence punishable under Section 19 or 24 or 27A and also for offences involving commercial quantity, he shall not be released on bail unless the Public Prosecutor has been given an opportunity to oppose the application for such release, and in case a Public Prosecutor opposes the application, the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. Materials on record are to be seen and the antecedents of the accused is to be examined to enter such a satisfaction. These limitations are in addition to those prescribed under the Cr.P.C or any other law in force on the grant of bail. In view of the seriousness of the offence, the law makers have consciously put such stringent restrictions on the discretion available to the court while considering application for release of a person on bail. It is unfortunate that the provision has not been noticed by the High Court. And it is more unfortunate that the same has not been brought to the notice of the Court."
26. In Union of India Vs. Rattan Mallik alias Habul (2009) 1 SCC (Cri) 831 Apex Court observed thus:
"We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the NDPS Act, the Court is not called upon to record a finding of 'not guilty'. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail."
27. In Narcotics Control Bureau Vs. R. Paulsamy (2000) 9 SCC 549, Hon'ble Supreme Court observed thus:
"In the light of Section 37 of the Act no accused can be released on bail when the application is opposed by the Public Prosecutor unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. It is unfortunate that regarding compliance with Sections 52 and 57 have been pre-judged by the learned Single Judge at the stage of consideration for bail. The minimum which the learned Single Judge should have been taken into account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the learned Single Judge during bail stage regarding the compliance with the formalities mentioned in those two sections."
28. In Union of India Vs. Ram Samujh and another, (1999) 39 ACC 643, Hon'ble Supreme Court held as under:
"It is to be borne in mind that the aforesaid legislative mandate is required to be adhered and followed. It should be borne in mind that in murder case, accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or inflicting death blow to number of innocent young victims, who are vulnerable, it causes deleterious effects and deadly impact on the society, they are hazard to the society, even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely."
29. The argument of learned Senior Counsel for the applicant regarding non-compliance of Section 42 is not correct. In the present case there was no requirement of compliance of Section 42 (2) of NDPS Act because the search and seizure was carried out on the direction of the superior Gazetted Officer himself and the reliance on the judgment of G. Srinivasan Goud (Supra) is not well founded.
30. The argument regarding the anomaly in quantity of the sample sent for testing and return after testing is also not correct since from the report of the Government Opium and Alkaloid Works, Ghazipur dated 28.01.2019, it is clear that none of the sample sent for examination was found to be below 24 gm. The 7 samples had weight 35.16 gm, 28.80 gm, 27.41 gm, 34.46 gm, 32.32 gm, 32.48 gm and 30.71 gm along with the plastic pouch wherein they were sent for examination. In the case of Rajesh Jagdamba Avasthi (supra) when the samples were received by Forensic Laboratory they were found less in quantity. First sample of 100 gm was found to be 18.16 gm only in weight and the second sample of 115 gm ,the quantity found was only 82.54 gm as clearly stated in paragraph 6 of the aforesaid judgment. In the present case there is no such anomaly therefore argument advanced on behalf of the applicant cannot be accepted.
31. Argument regarding non-compliance of Section 50 of NDPS Act is also flawed. Section 50 of NDPS Act is attracted in case of personal search and not in the case where search was made from the vehicle. In the present case ganja was recovered from the Swift Desire car wherein the applicant was found traveling.. Following cases can be relied upon:-
1. 2003 (47) ACC-763 (Madan Lal and another Vs. State of Himanchal Pradesh).
2. 2003 Crl.L.J.-4329 (Megh Singh Vs. State of Punjab) 3.2005(52) ACC-710 (State of Himanchal Pradesh Vs. Pawan Kumar).
32. In the aforesaid judgments, it has been held by the Hon'ble Apex Court that Section 50 of NDPS Act applies only in case of personal search of a person. It does not extend to search of a vehicle or container or a bag or premises. In the present case, the contraband 'ganja' was recovered from a car, hence it was not a personal search.
33. Apart from this, in the case of Varinder Kumar Vs. State of Himachal Pradesh, reported in 2019 SCC Online 170, it has been stated that Section 50 of NDPS Act had no application, since the recovery was not from person of the applicant but from the bag being carried at his shoulder. There was no material to conclude that the witnesses was withheld or suppressed by the prosecution with any ulterior motive.
34. Moreover, in the case of State of Himanchal Pradesh vs. Pawan Kumar (2005) 52 ACC 710 meaning of the word "person" has been discussed. The word "person" would mean a human being with appropriate covering and clothing and also footwear. A bag, brief case or any such articles or container, etc., can, under no circumstance be treated as a body of a human beings.
35. After considering the submission made by the learned counsel for the parties, the perusal of the material on record as well as the complicity of the applicant, this court does not finds any good reason to enlarge the applicant on bail. However any observation made in this order will not affect the proceedings of the trial court and it shall decide the case as per the evidence led before it, not affected by observations made herein.
36. The bail application is accordingly rejected.
37. However, the trial court is expected to gear up the trial of the aforesaid case and conclude the same, as expeditiously as possible, from the date of receipt of certified copy of this order keeping in view the law laid down by the Apex Court in the case of Alakh Alok Srivastava Vs. Union of India and Another reported in AIR 2018 (SC) 2004, if there is no legal impediment, without granting any unnecessary adjournment to either of the parties, provided the applicant fully cooperates in the proceedings before the trial court.
Order date: 26.11.2019 Rohit