Heard Ms. Sonia Saraswat, learned counsel for the applicant, learned Additional Government Advocate representing the State and perused the record of the case.
The instant bail application has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. 248 of 2020, under Section 21/22 of Narcotics Drugs & Psychotropic Substances Act, police station Govind Nagar, district Mathura, during the pendency of trial.
As per the prosecution case, on 19.07.2020 informant Shiv Sharan Singh (Sub-Inspector of Police) lodged first information report at 23:53 hour against the applicant under Section 21/22 of the N.D.P.S. Act alleging inter alia therein that when on 19.07.2020 he along with two Constables, Jaipal Singh and Ajay Kumar Yadav were on patrolling duty in Deeng Gate area and as soon as they reached in front of Saraswati Kund, they saw one person coming, on seeing the police personnel, he suddenly took a U-turn and went towards Ramleela ground. On noticing the suspicious conduct of the applicant, the police personnel ask him to stop, but he did not stop. Thereafter, on using the force, he was apprehended. On questioning, he told his name Salman @ Arman @ Kale @ Nanga, son of Anwar, aged about 25 years and stated that he was carrying intoxicated powder Alprazolam. The FIR further alleges that as the applicant was in possession of the intoxicated powder, he was informed about his constitutional rights and was given option for getting his search by a Gazetted Officer or Magistrate, but he denied to be searched by a Gazetted Officer or the Magistrate. Accordingly, consent letter was prepared by the informant and thereafter, applicant was searched by the informant S.I., Shiv Sharan Singh. The FIR also alleges that from the right pocket of the pant of the applicant, one black coloured polythene containing light pink colour material was recovered, to which applicant told that it was intoxicated powder Alprazolam. On demanding licence of recovered intoxicated powder, the applicant could not show the licence and prayed for excusing him. The applicant disclosed that he used to sell the recovered intoxicated powder to addicted persons. On taking weight of recovered material, it was found 380 gms., out of which 50 gms. was taken out for sampling. Remaining material and sample were kept in separate polythene. After keeping in white cloth, the same were sealed. It is also mentioned that at the spot effort was made to call the public witness, but nobody was ready to become witness of the said incident and also did not disclose their names. It is also mentioned that the applicant is also wanted in Case Crime No. 244 of 2020, under Sections 147, 149, 323, 506 I.P.C., in which informant is the investigating officer. The applicant was arrested at 21:35 hour.
It is submitted by the learned counsel for the applicant that the applicant has been falsely implicated in this case by the informant. Admittedly, there is no independent public witness of the aforesaid recovery as shown from the possession of the applicant, therefore, false implication of the applicant in the present crime cannot be ruled out. It is next submitted by the learned counsel for the applicant that in fact no such recovery has been made from the possession of the applicant as alleged by the prosecution. There is violation of mandatory provisions of Sections 50, 52, 55 and 57 of the N.D.P.S. Act. It is vehemently urged by the learned counsel for the applicant that in fact on 19.07.2020 at 7:00 a.m. the applicant was lifted from his house and falsely implicated in the present case. The applicant is not a previous convict. The applicant was never involved in any case under the N.D.P.S. Act except the present case. In this case, charge sheet has been submitted on 28.11.2020 without conducting fair investigation only after recording the statement of police personnel. The applicant is facing detention since 20.07.2020. It is next contended by the learned counsel for the applicant that there is no chance of the applicant of fleeing away from the judicial process or tampering with the prosecution evidence. There is no prospect of trial of the present case being concluded in near future due to heavy dockets. Learned counsel for the applicant lastly submitted that if the applicant is released on bail, he will not misuse the liberty of bail and will cooperate in the early disposal of the case.
Learned A.G.A. opposed the bail prayer of the applicant reiterating the contents as mentioned in F.I.R. and submitted that apart from the present case, the applicant has criminal history of sixteen cases. It is also submitted that in chemical examination report dated 12.11.2020 recovered material was found as Alprazolam. Learned AGA has also produced the case diary of the present case for perusal of the Court. However, learned A.G.A. does not dispute the fact that except the present case, none of the case shown against the applicant is related to N.D.P.S. Act.
After having heard the learned counsel for the parties and perusing the record, I find that the search was taken by Sub-Inspector of Police/informant, who is not a Gazetted Officer. From the contents of F.I.R., I find that it is mentioned therein that the applicant was informed about his constitutional rights and asked to give his search before any Gazetted Officer/Magistrate. The aforesaid content does not indicate that the requirement of Section 50(1) of the N.D.P.S. Act was fulfilled. There is no clear communication to the accused-applicant that he had right to be searched in presence of a Gazetted Officer or Magistrate. This Court is of the view that under the stringent provisions of law, it is obligatory on the part of the prosecution to comply with the mandatory requirements of Section 50 of NDPS Act in true sense. The concept of substantial compliance cannot be read into provisions of Section 50(1) of the N.D.P.S. Act, as settled by the Apex Court in catena of judgments.
It is also well settled that unless a person knows about his legal right in clear terms, he cannot choose the option given to him. The offer made by the informant/Sub-Inspector to accused in the present case cannot be said to be a valid offer, as the same did not amount to a communication of his right to have the search conducted in the presence of Magistrate or a Gazetted Officer as settled by the Hon'ble Apex Court in the case of Myla Venkateswarlu Vs. State of Andhra Pradesh, (2012) 5 SCC 226. The Constitution Bench of Hon'ble Apex Court in the case of Vijaysinh Chandubha Jadeja Vs. State of Gujarat, 2011 (1) SCC 609 has held that as the requirement of Section 50 of the N.D.P.S. Act is mandatory, therefore, provisions of Section 50 must be strictly complied with. It is also held that the suspected person may or may not choose to exercise the right provided to him under Section 50 of the N.D.P.S. Act, but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the N.D.P.S. Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate. After perusing the case diary, I also find that as per the prosecution case, sample was drawn on 19.07.2020, but the same was sent to the laboratory (Vidhi Vigyan Prayogshala, Agra) on 07.08.2020 i.e. after 19 days through C.P. 731 Satish Chandra and there is no explanation of such delay. It is also relevant to note that there is no signature or thumb impression of the accused applicant on the alleged sample, therefore possibility of tampering the same cannot be ruled out.
Since, there is no strict compliance of Section 50 of the N.D.P.S. Act in the present case, as mentioned above, therefore, this Court is of the view that the applicant has made out a case more than prima facie in his favour to satisfy the requirement as provided under Section 37 of the N.D.P.S. Act. Hence, the bail application is hereby allowed.
Let the applicant Salman @ Arman @ Kale @ Nanga, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
(v) The applicant shall file computer generated copy of this order downloaded from the official website of High Court Allahabad.
(vi) The computer generated copy of this order shall be self attested by the counsel of the party concerned.
(vii) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 12.2.2021 Sazia