Adil vs State Of Madhya Pradesh

The petitioner has filed this first application u/S. 439 of Cr.P.C. for grant of bai.

The petitioner has been arrested on 27/4/2019 by Police Station Crime Branch, District Gwalior (M.P.) in connection with Crime No.62/19. registered in relation to the offence punishable u/S.8/21 of the NDPS Act.

Learned Panel Lawyer for the State opposed the application and prayed for its rejection by contending that on the basis of the allegations and the material available on record, no case for grant of bail is made out.

Petitioner is in custody in respect of the aforesaid offence where 280 gms of smack is found in possession of petitioner who has dubious distinction of having been convicted of similar offence under the NDPS Act earlier.

The narcotic drug seized is more than the minimum commercial quantity and though investigation is over but learned counsel for petitioner relying upon decision of Apex Court in Arif Khan alias Agha Khan Vs. State of Uttarakhand (2018) 18 SCC 380 (paras 22 to 26) submits that procedure for seizure prescribed in mandatory terms u/S. 50 of the NDPS Act has not been adhered to inasmuch as the petitioner before being searched was neither taken to a Gazetted Officer nor before a Magistrate. Relevant portion of the said judgment is reproduced below:-

"22. In our considered view, the evidence adduced by the prosecution neither suggested and nor proved that the search and the recovery was made from the appellant in the presence of either a Magistrate or a Gazetted Officer.

It is the case of the prosecution and which found acceptance by the two Courts below that since the appellant (accused) was apprised of his right to be searched in the presence of either a Magistrate or a Gazetted Officer but despite telling him about his legal right available to him under Section 50 in relation to the search, the appellant (accused) gave his consent in writing to be searched by the police officials (raiding party), the two Courts below came to a conclusion that the requirements of Section 50 stood fully complied with and hence the appellant was liable to be convicted for the offence punishable under the NDPS Act.

We do not agree to this finding of the two Courts below as, in our opinion, a search and recovery made from the appellant of the alleged contraband "Charas" does not satisfy the mandatory requirements of Section 50 as held by this Court in the case of Vijaysinh Chandubha Jadeja (supra). This we say for the following reasons.

24.1 First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or Gazetted Officer;

24.2 Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband "Charas" was not made from the appellant in the presence of any Magistrate or Gazetted Officer;

24.3 Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband "Charas" from him, was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband "Charas" as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a Gazetted Officer;

24.4 Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer.

Though, the prosecution examined as many as five police officials (PW-1 to PW-5) of the raiding police party but none of them deposed that the search/recovery was made in presence of any Magistrate or a Gazetted Officer.

For the aforementioned reasons, we are of the considered opinion that the prosecution was not able to prove that the search and recovery of the contraband (Charas) made from the appellant was in accordance with the procedure prescribed under Section 50 of the NDPS Act. Since the non-compliance of the mandatory procedure prescribed under Section 50 of the NDPS Act is fatal to the prosecution case and, in this case, we have found that the prosecution has failed to prove the compliance as required in law, the appellant is entitled to claim its benefit to seek his acquittal."

The State was required to respond to the aforesaid specific ground of breach of Sec. 50 of the NDPS Act. The State has filed compliance report on 26/9/2019 supported by an affidavit of SHO Crime Branch, Gwalior which does not dispute that petitioner was not produced before a Magistrate or Gazetted Officer at the time of search. The affidavit reveals that a mere consent was taken from the petitioner in writing that he is ready and willing to be searched by a police officer who was not a Gazetted Officer.

In view of the above said laid down by the Apex Court in case of Arif Khan alias Agha Khan (supra), the above provision of Sec. 50 of the NDPS Act appears to be breached and therefore the seizure of the narcotic drug from petitioner becomes doubtful. Since investigation is over, further custodial interrogation is not necessary.

Considering the above facts and that early conclusion of the trial is bleak possibility and prolonged pre-trial detention is anathema to the concept of liberty and the material placed on record does not disclose possibility of the petitioner fleeing from justice, this Court is inclined to extend the benefit of bail to the petitioner but with certain stringent condition in view of nature of offence.

Accordingly, without expressing any opinion on merits of the case, this application is allowed and it is directed that the petitioner be released on bail on furnishing a personal bond in the sum of Rs. 1,00,000/- (Rs. One Lakh only) with two solvent sureties each of Rs.50,000/-to the satisfaction of the concerned Trial Court.

This order will remain operative subject to compliance of the following conditions by the petitioner :-

The petitioner will comply with all the terms and conditions of the bond executed by him;

The petitioner will cooperate in the investigation/trial, as the case may be;

The petitioner will not indulge himself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to the Police Officer, as the case may be;

The petitioner shall not commit an offence similar to the offence of which he is accused;

The petitioner will not seek unnecessary adjournments during the trial; and

The petitioner will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be.

The petitioner shall mark his presence before the trial court once every fortnight till conclusion of trial.

The petitioner shall plant 25 saplings of indigenous fruit bearing or shady trees on the side of the road/street of the place of residence of petitioner or at any other place in the district which is earmarked by the Collector/Revenue Authority for planting trees and shall take care of the trees for the next one year by watering the plants and by installing tree guards at his own expenses. In case the petitioner is unable to afford incurring of such expenses, then he would obtain saplings/tree guard from the forest authorities (the concerned Forest Range Officer of the area) free of cost or at concessional/nominal rates available under any beneficial scheme of the Government. The petitioner shall file an affidavit disclosing compliance of this condition within 30 days in the Registry, failing which this court may consider cancellation of bail.

On complying with Condition No.8 aforesaid, the petitioner is directed to inform the location of plantation made to the Forest Rang Officer of the area concerned who will pass on this information to the DFO concerned.

For effective implementation of this order in the interest of betterment of ecology of the area concerned, the District Magistrate of district within which the petitioner resides is directed to assist the petitioner/accused to comply with condition No.8 by extending all possible financial and material assistance to the petitioner admissible under any of the beneficial scheme for afforestation of the State.

The DFO of the concerned District is directed to file verification report before the trial Court concerned after carrying out inspection personally or through any other officer of the Forest Dept duly authorized in that behalf disclosing as to whether petitioner has complied with condition No.8 or not, and if yes to what extent?

The learned trial Judge on receiving report of noncompliance of condition No.8 shall forthwith communicate the same to the Registry of this Court.

The Registry on receiving any such report from the trial Court disclosing default shall put up the matter before appropriate Bench in shape of PUD.

A copy of this order be sent to the trial Court concerned for compliance.

Let a typed copy of this order be also supplied to the counsel for the State for compliance of the aforesaid directives.

A copy of this order be furnished by the Registry of this court to the concerned District Magistrate and the DFO having territorial jurisdiction over the place of residence of the petitioner for execution of the order in the interest of the ecology.

For the time being this case stands disposed of.

C.c. as per rules.