Abdul Rashid Dar vs State

Abdull Rashid Dar, petitioner before this court was arrested on 6.6.1998, after being found carrying a contraband drug (Brown sugar). He is

shown accused in FIR 130/98 under Section 8/20 N.D.P.S Act, registered at p/s Budgam. The petitioner was refused bail by District and

Sessions Judge Budgam, the trial court, under his order dated: 12.9.98. Against this order revision has been failed in this Court. Petitioner has also

moved as applicating for bail separately. The grounds put forth for bail are:

That the allegation of seizure of brown sugar from the person of accused is false and baseless incrimination allegation levelled by the concerned

police. The petitioner is stated to have been in custody of the police much earlier to the date when the recovery of contraband is shown/seized

from him, After arrest of petitioner and before search it was incumbent upon Investigating Agency to inform the accused that if he so likes he can

be brought before a Gazetted Officer or a Magistrate for purpose of search, pursuant to mandatory provisions of Section 50 of N.D.P.S Act. This

has not been down. Once the provision of section 50 has not been complied with SIC the prosecution case gets weakened so much so it cannot

be presumed that there are reasonable grounds for believing commission of offence by the accused for purpose of bail. The accused was not

informed of this right. There is nothing even on record to indicate that the investigating officer has complied with Section 50 of NDPS Act. Not

only so the Investigating Officer, who recovered the substance (Brown Sugar) from the accused himself investigated the case and completed the

investigation which has culminated in filing the charge sheet against the accused in court. This aspect of the matter cannot be also lost sight of.

Besides, the petitioner is a youth of just 20 years of age with no criminal record or past history of the sort. The order passed by the trial court is

not informed of all these aspects and has been passed in routine.

The other side has appeared through M/S M.I.Qadri, Senior Additional Advocate General, M.Amin, and G.Ali Govt. Advocates Mr.G.Ali has

addressed arguments in the matter.

Respondents have opposed the bail on the ground that even though the investigation agency is not shown to have complied with Section 50 of

NDPS Act, same does not entitle the accused to get bail, as the compliance with section 50 of NDPS Act can be established during the trial by the

prosecution. The accused has been caught redhanded while carrying the contraband, therefore, he should not be given bail notwithstanding that the

challan has been produced in the court.

In AIR 1996 S.C 977,the question which arose before their lordship was whether at the stage of taking cognizance of the offence at pretrial

stage, the Sessions Judge was justified to discharge the accused on the ground of noncompliance with the provisions of Section 50 of NDPS Act.

Their lords ships after analysing the law on the subject and examining the matter, answered the question in negative. It was held that the

prosecution can during trial, on merits establish and bring on record evidence of compliance with Section 50 of the Act. The accused cannot earn

perse discharge at the threshold of the trial when the matter is yet to be examined on the merits of the case. While laying down this principle, their

lordships also reiterated the legal position that compliance with section 50 of the Act is mandatory and the investigating officer is under legal

obligation to inform the concerned person of his right to be searched in presence of a gazetted officer or a Magistrate. If no evidence regarding

search of person in presence of gazetted officer or Magistrate is given, the court has to conclude that the person searched was not informed of the

protection given to him by law and hold that the possession of illicit articles was not established. The presumption of proper performance of official

duty in terms of section 114 (e) of the Evidence Act does not arise in such a case.

5.The authority no where lays down that the court while deciding the question of giving or refusing the bail cannot take into consideration this

circumstance of the case. Infect their lordships did not rule on the question of bail and continuance on bail of accused within the context of

accusation of recovery of illicit article from accused under the NDPS Act, in the face of contrast and of other side of noncompliance with

provisions of Section 50 of the NDPS Act. Therefore, rejection of the bail solely after citing the law laid down in the above authority by the Apex

Court, is not proper exercise of powers within jurisdiction.

In AIR 1991 S.C 558,The power of the High Court to grant bail under section 439 Cr.P.C of the Central Act ( S.498 of state C .PC ) in a

case registered and tried under NDPS Act, were considered. Their lordships conclude that the power of the High Court to grant bail under the

provisions of Criminal Procedure are subject to the limitations contained in the Section 37 of NDPS Act. Under Section 37 of NDPS Act. before

passing orders in the bail matter, the Public Prosecutor has to be given opportunity to he heard and further the court must be satisfied that there are

reasonable grounds for believing that the accused is not guilty of such offence and is not likely to commit any offence while on bail.

In a decision of Bombay High Court in Lawrence D'Souza Case (1992 Cr. Law Journal 399 Bom.), a single judge of that court held that non,

compliance with provisions of section 41 to 58 of the NDPS Act can be looked into even at the stage of bail. It will be fallacious and pernicious to

leave the question of their compliance to be looked into only at the stage of trial. The provisions which include Section 50 of the NDPS Act,

cannot be ignored altogether at the bail stage, as such an approach is fraught with consequence that can put the liberty of a citizen guaranteed

under Article 21 of the Constitution at peril. The accused should be entitled to reply upon the infirmities discernible from record even at the bail

stage.

In 1993 Delhi LT 507, the accused was given bail even when Charas was recovered from his person after it was found that the accused had not

been given full choice to be searched in presence of a gazatted officer or a Magistrate, as envisaged under section 50 of NDPS Act.

This court has to embark on balancing the confronting demands of shielding the society from misadventure of persons allegedly involved in the

crimes like the present one and presumption of innocence of accused till found guilty. With this end in view, the facts and circumstances which have

a bearing on the question of validity of search under NDPS Act, can be looked into at the stage of bail. Bail can be granted to the accused if

mandatory provisions of Section 50 of the Act have not been complied with. Reference can be made with benefit to 1992 2EFR 486(2),AIR 488

(Alt), 1991 Ref. Cri.c 168 (170)1991 cr LR (Ref) 620 (170), 1991CriL.R (Ref)620,1992 (2) in GJ 488 (P and tt),1997(2) Crimes 386 P and H

and 1996 FAJ 109 Patna.

In 1996 FAJ. J and K Page.40, the Single Judge of this Court extended the benefit of noncompliance with provisions of Sections 42 and 50 of

NDPS Act to accused while considering their bail on charges of recovery of Charas from the possession of accused.

Having thus considered the question, it is seen in this case that the investigations have been completed. Police report under Section 173

(challan) has been produced in Court, the case is at precharge stage before the trial court of Sessions Judge Budgam. The illicit .material opined as

Brown sugar weighing 1kg is shown to have been recovered from the possession of the accused ,Abudl Rashid Dar, on 6.6.1998 when the

accused was taken in custody and continues in such custody to date. There is nothing on record, including the police report, and seizure memo, to

suggest that the accused was given the option and informed of his right of being searched in presence of gazetted officer or a Magistrate. The

accused is shown to be a young man just in twenties. There is no past history of the accused. He has no previous antecedents like, of the alleged

occurrence in question, as nothing of the sort has come to the knowledge of the Screening Agency as per report.

Thus considered keeping in view the over all facts and circumstance of the case, character and conduct of the accused of history or past

criminal record of the accused, in the context of circumstances appearing on record of noncompliance with mandatory provisions of Section 50 of

NDRS Act, the case for bail is made out. Accordingly the accused is admitted to bail in the sum of Rs. 15,000/ with two sureties with personal

bond in the like amount on condition that the accused shall regularly appear before trial court at Budgam and shall not leave the State without prior

permission of the trial Court. It shall be also condition of bail that accused shall refrain from dissuading or bringing on to bear undue influence or to

coerce or intimidate any witness who is likely to appear against him during trial of the case, the bonds shall be to the satisfaction of the trial Court.

It is placed on record that the weight and impact of factum of investigation of the case allegedly conducted by the police officer who recovered

the prohibited/ psychotropic/narcotic substance (Brown Sugar) in this case is left to be determined on trial. Whether recovery and investigating of

the case is by one and same officer/police personnel and if so, the impact thereof and extent to which it will affect this case are matters to be

determined sic evidence on trial at the proper stage by the Court.

Revision and CMP/Bail application allowed and disposed of in terms as above orders. Convey the order to Court below. Send back record.