ORDER S.K. Phaujdar, J.
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 psycho-tropic 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 Marhuadih, 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 search and 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 orginal 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 Verma was detained under the provisions of Prevention of the Illegal Traffic in Narcotic Drugs and Psychotropic Substances Act, 1995 (hereinafter referred to as the PIT NDPS Act). On 11-6-94 the applicant was under preventive detention in central jail, Agra, by the order of the Central Government. He was also facing trial in Criminal Misc. Case No. 257 of 1995 under the NDPS Act it was submitted that the applicant was not entitled to be enlarged on bail during the detention period. In any view of the matter the department relied upon the provision of Section 13(7) of the PIT NDPS Act, which forbids release of the person in detention either on bail or otherwise. It was contended that there were proper orders of remand and to substantiate his contention the learned State counsel submitted a certified copy of the order dated 4-5-95.
This order dated 4-5-95 is in Hindi and is quoted in toto:
"4-5-95 Pukar Karayee gayee. Mulzim Manish Kumar Verma Kendriya Karagar Agra se Aakar pesh Hua. Gawah P.W. 1 Sri R.K. Lal ka Bayan Darz Kiya GayaTatha Mukhya Parrikshan Jari Hai. Abhiyukt Ka Pichhia warrant Antargat Dhara 309 Kendriya Karagar Agra se vapas pesh Nahi Kiya Gaya Aur report Di Gayee Ki Allahabad Ucha Nyayalaya Mein warrant Talab Hai. Atah Abhiyukta Ko dhara 309 Cr.P.C. Ke Antargart nirudh rakhte Hue Atah Dinank 22-5-95 ko pesh Kiya Jai/Gawahan Talab Hon."
The above order is being translated in English as under:
"Case called out. The accused Manesh Kumar Verma has been produced from the Central Jail, Agra. P.W. 1, Shri R.K. Lal's statement is recorded and his examination in chief is continuing. The last warrant under Section 309 Cr.P.C. for the accused has not been sent from the Central Jail, Agra, and it has been reported that warrant has been called for by the Allahabad High Court. Accordingly, the accused be detained under the provision of Section 309 Cr.P.C. and be produced on 22-5-95."
So far as the other contentions are concerned regarding non-compliance of the mandatory provisions of the Cr.P.C. or the NDPS Act, this Court is to be guided at this stage by the averments made in the seizure-memo and other evidence of the prosecution. The truth or otherwise of the applicant's averments may be judged after trial. The affidavits of the concerned officers of the department indicate that the required provisions of search and seizure and follow up actions were strictly adhered to, and this court, in disposing of the bail application, may not, therefore, question the authenticity thereof at this stage.
8. The only point that arises for consideration is whether there was a proper remand order, and, if not, whether on that ground the accused may be released on bail, keeping in view the fact and development that during the pendency of the present application there has been a detention order passed against the applicant under the PIT NDPS Act with effect from 11-6-94.
9. The learned counsel for the applicant relied on several case-laws explaining the scope and meaning of Sections 209 and 309 of the Cr.P.C., as also the mandatory nature of the provisions under the NDPS Act. My attention was drawn to a decision of the Allahabad High Court (Lucknow Bench) in the case of Vashisthamuni v. Superintendent District Jail, as reported in 1993 U.P. Cri R 159. It speaks that in an order of remand under Section 309 there is a limitation concerning the length of every remand which cannot be more than 15 days at a time. A remand order that was made for the whole period of the trial of the accused was held illegal. The order was passed by a Division Bench in exercise of its power under Article 226 of the Constitution.
10. In another writ petition, another Division Bench of the Allahabad High Court (Lucknow Bench) also dealt with a matter dealing with remand. There was no judicial order passed by the court authorising the jail authority to keep the petitioner in custody and the applicant who was an under trial in a substantive case was granted bail. This case (Mushtak v. Jail Superintendent) stands reported in 1993 UP Crl R 392.
11. Reference was also made to another decision of the Allahabad High Court in the case of Bechan Misra reported in the same volume of 1993 UP Cri R 548. The order was passed in exercise of the powers under Section 439 Cr. P.C. in dealing with a bail application. The remand order in this case was not strictly in accordance with law. Co-accused persons similarly placed were released on bail on the basis of their habeas corpus petitions and the applicant was also directed to be released on bail.
12. Reliance was also placed on an unreported decision of the Allahabad High Court (Lucknow Bench) in Writ Petition No. 41 of 1993 (Wali Mohd. v. State). Here also the remand order was not in conformity with Section 309 Cr.P.C. and the custody of the applicant was held unlawful and he was directed to be set at liberty.
13. The learned counsel further placed reliance on a decision of a Division Bench of this Hon'ble Court in the case of Bal Mukund Jaiswal which was also a habeas corpus petition numbered as Habeas Corpus Writ Petition No. 9061 of 1994. Here also a remand order was under challenge. The court had framed several questions for decisions and one of them was as follows :-
"Whether an accused person under judicial custody on the basis of a valid remand order passed under Section 209 or 309 Cr. P.C. by the Magistrate pending commital proceeding or trial, should be set at liberty by issuing writ of habeas corpus on the ground that his initial detention was violative of constitutional guarantee enshrined in Articles 21 and 22 of the Constitution. The Court was of the view that for exercise of a right to issue habeas corpus writ, the court has to consider legality of the present detention and may not refer to the initial detention. Person detained may not refer to any date prior to the date of presentation of the writ petition and in some decisions, as discussed by the court, the date of return was the relevant date. In some other cases, it was held that the date of hearing was the relevant date to determine the legality of detention. The Court in this case of Bal Mukund Jaiswal referred to the decision of the Supreme Court in the case of Kanu Sanyal, wherein it was held that even initial violation of Article 22(1) of the Constitution may not affect subsequent legal detention. The case of Kanu Sanyal was one of Criminal charge and not of preventive detention."
14. On the question of mandatory nature of the provisions of the NDPS Act, concerning search seizure, the learned counsel placed reliance on the decision of the Supreme Court in the case of State of Punjab v. Balbir Singh, as reported in 1994(1) Crimes 753. It was held herein that the provisions of Section 41(1), 41(2), 42(1), 52 and 57 of the NDPS Act are mandatory. It was held also in this case-law that if there is no strict compliance of the provisions of the Code of Criminal Procedure as indicated under Sections 100 and 165, the search would not per se become illegal and would not vitiate the trial. The effect of such failure has to be borne in mind while appreciating the evidence in the facts and circumstances of the case. The State had moved this appeal against an order of acquittal recorded by the High Court and the appeal was dismissed.
15. Relying on this decision in Balbir's case, the Bombay High Court also recorded a judgment in the case of Nazir Bala Lal Mukundar, as reported in 1995 (2) Crimes 136. The prosecution had contravened the mandatory provisions of Sections 42(1) and 50 of the NDPS Act. The conviction was not sustained by the High Court.
16. The Supreme Court reiterated its view by a three-Judge Bench in the case of Saiyed Mohd. Saiyed Umar Saiyed, as reported in 1995 (2) Crimes 182. It was held herein that the protection given under Section 50 of the NDPS Act cannot be disregarded on technicality. The conviction of the appellant was not sustained.
17. The learned counsel for the Union of India placed reliance on a decision reported in 1985 JIC 345. It is a decision of the Division Bench of Allahabad High Court in the ease of Virendra Singh. Here was a remand order recorded without production of the accused in Court. It was held that mere absence of accused would not vitiate the detention.
18. The case-laws concerning violation of the provision of the NDPS Act may not concern us at the present moment as there is denial of such violation on behalf of State and it has been averred by the State that all the provisions concerning search and seizure were strictly followed. It is a question of appreciation of evidence at the trial and the court may not engage itself in scrutinising the evidence or the materials thoroughly at this stage. The court has to act on the prima facie allegations.
19. As regards the legality of remand, we have before us materials to show that there was no proper remand order initially when the accused was first produced before the Court, but subsequent papers indicate that on 4-5-1995 the accused was produced from the Central Jail, Agra, and his warrant was not produced from the jail and a fresh order was made under Section 309 Cr.P.C. directing him to be detained till 22nd May, 1995. This is to be read as a proper remand order and, keeping in view the decisions as discussed above, the crucial date for looking to the legality or otherwise of the detention is the date of order, i.e. the present detention and not the past ones. The present detention being legal, the accused cannot challenge his detention at the present moment although he may have other remedy for past wrongful detention, if any.
20. It may be seen that most of the cases relied upon by the applicant wherein orders in favour of release were recorded, were habeas corpus writ petitions while the present application is one under Section 439 Cr. P.C. The power of the High Court in exercising the jurisdiction under Section 439 Cr. P.C. cannot be equated to its power in exercise of the writ jurisdiction under Article 226 of the Constitution. In the case of Bal Mukund Jaiswal, the Division Bench differed from the earlier Division Bench views of the Allahabad High Court and made a distinction between the cases of detention or criminal charge from the case of preventive detention, although in exercise of the habeas corpus jurisdiction, and a question was referred to larger bench "where an accused person is under judicial custody on the basis of a valid remand order passed under Section 209 or 309 Cr.P.C. by the Magistrate pending committal proceeding or trial, should he be set at liberty by issuing a writ of habeas corpus on the ground that his initial detention was violative of constitutional guarantee enshrined under Articles 21 and 22 of the Constitution". Awaiting decision of the larger bench on this point, Bal Mukund was granted bail in exercise of the habeas corpus jurisdiction.
21. In the case at our hand, we are concerned with an application under Section 439 Cr. P.C. The question involved is not violation of the constitutional guarantee under Articles 21 and 22 of the Constitution but of the validity of remand and this Court has found that the present detention is valid under a proper order of remand dated 4-5-1995. Thus, the decision in the case of Balmukund Jaiswal could not be available in favour of the applicant.
22. In view of the above, the bail prayer stands rejected.