Dharmendra Gupta vs State of U.P.

M.L. Singhal, J.—The applicant Dharmendra Gupta has applied for bail in Case Crime No. 99 of 1997, u/s 20/21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the N.D.P.S. Act), P. S. Najirabad, district Kanpur Nagar. I have heard the learned Counsel for the accused-applicant and U. N. Shukla the learned Additional Government Advocate.

The prosecution version as embedded in the F.I.R. is that one Dinesh Kumar Sishodia, Inspector along with certain police officials on 23.4.1997 while on patrolling duty, were standing on Mariyampur cross-road in Kanpur City, at that very time Shri Shrikant Singh, Circle Officer, Najirabad along with the other police officials came on jeep, it was about 7.20 p.m. All of them were having conversation amongst themselves. At about 7.30 p.m., a person came on a motor cycle and informed that a person coming behind on a scooter was a man of suspicious character, his search be taken, and thereafter disappeared. All the police officials became cautious, took the search inter se and nothing was found objectionable and endeavour was made to call public witnesses but none of them was available. Within five minutes, a person came on the scooter, who was stopped. On interrogation, he disclosed his name as Dharmendra Gupta accused-applicant. Search of the accused-applicant was taken, in the ''Diggi'' under the seat of the scooter, in a bag of polythene kept in a steal tiffin, about 260 gms. brown sugar was recovered from the possession of the accused. The accused-applicant disclosed that the article recovered was brown sugar, weighed 260 gms. On this, the accused-applicant was informed that in the police party Circle Officer, Najirabad, a police officer was also present and the search of the accused-applicant was being taken in the presence of the Circle Officer. Further a sum of Rs. 5,000 was recovered from the possession of the accused, which the accused said to have collected from the sale of the brown sugar. Thereafter the necessary formalities regarding the sealing of the recovered goods were performed.

The learned Counsel for the accused-applicant vehemently argued that as revealed by the aforesaid contents of the F.I.R. itself, there is no compliance of the provisions of Section 50 of the N.D.P.S. Act. As reproduced above in the first instance, the recovery of the brown sugar was made from the possession of the accused and only thereafter, the accused was informed that in the police party Circle Officer--a Gazetted Officer was also present and the search was being taken in his presence. The provisions of Section 50 of the N.D.P.S. Act, mandatory provision repeatedly held by the Hon''ble Supreme Court having been violated, the accused-applicant is entitled to bail. Even the presence of the Gazetted Officer in the searching party is not sufficient, the accused-applicant must have been told about his right. The learned Counsel in support of his contention relied upon the decisions of the Hon''ble Supreme Court in State of Punjab v. Balbir Singh 1994 SCC 634, Punjab and Haryana High Court in Shyam Lal v. State of Haryana 1996 (2) EFR 578 and of Patna High Court in Rajendra Kumar v. State of Bihar 1996 (2) EFR 9.

The contentions advanced by the learned A.G.A. are that there is sufficient compliance of provisions of Section 50 of the N.D.P.S. Act in this case inasmuch as a Gazetted Officer, namely, Circle Officer was present on the spot and in his presence, the search was conducted. The suspect has no right to make a choice between the Gazetted Officer and the Magistrate. Further the provisions of Section 37 of the N.D.P.S. Act operate in the case, the accused-applicant in view of the having recovery made from his possession is not entitled to the bail prayed for. In support of his contentions, the learned A.G.A. relied upon the decision of the Supreme Court in Manohar Lal v. State of Rajasthan, 1996 SCC 257 and of this Court, rendered in Gyasuddin v. State of U. P. 1997 ACC 714 and in Zakir Husain v. State 1997 ACC 833.

In State of Punjab v. Balbir Singh (supra), with regard to the compliance of the provisions of Section 50 of the N.D.P.S. Act, the Supreme Court held :

Section 50 confers a valuable right on the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. Under the Act wide powers are conferred on the officers and deterrent sentences are also provided for the offences under the Act. The Legislature while keeping in view the menace of illicit drug trafficking deemed it fit to provide for corresponding safeguards to check the misuse of power thus conferred so that any harm to innocent persons is avoided and to minimise the allegations of planting or fabricating by the prosecution, Section 50 is enacted. When such is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred u/s 50 in the context is all the more important and valuable. Therefore, it is to be taken as an imperative requirement on the part of the officer intending to search. It must, therefore, be held that on prior information the empowered officer or authorised officer while acting u/s 41(2) or Section 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. The provisions of Section 50 are thus mandatory.

In Rajendra Kumar v. State of Bihar (supra), another case relied upon by the learned Counsel for the applicant, the Division Bench of Patna High Court observed that the requirement of Section 50 of the N.D.P.S. Act of informing the accused about his right to get his search conducted before a Gazetted Officer or a Magistrate is mandatory. The mere fact that a Gazetted Officer was present and the search was conducted is not sufficient, information about the right must be given to the accused by the raiding party. The learned Counsel for the applicant vehemently contended that in the present case the search was conducted first, the recovery was made and thereafter the accused was apprised that the Circle Officer--a Gazetted Officer was also present on the spot and the search was being made in his presence. In another case Shyam Lal v. State of Haryana, (supra), relied upon by the learned Counsel for the applicant, the facts were almost similar. In that case also, the accused was not informed about his right to get search conducted in the presence of a Gazetted Officer/Magistrate, the plea of the prosecution that the search was conducted in the presence of Dy. S. P., a Gazetted Officer, who happened to arrive on the spot was not accepted. It was held by the Court that the provisions of Section 50 of the N.D.P.S. Act were not complied with and as such, the accused was entitled to bail.

The question whether the accused-applicant is entitled to bail on account of the violation of the mandatory provisions of Section 50 of the N.D.P.S. Act has been considered by this Court in two cases, namely, Zakir Hussain v. State of U. P., (supra) and Gyasuddin v. State of U. P. (supra), relied upon by the learned A.G.A. In State of Himachal Pradesh Vs. Shri Pirthi Chand and another, , it has been held by the Supreme Court that illegality committed in investigation does not render the evidence obtained during that investigation inadmissible. After considering the other decisions of the Court earlier, the Supreme Court held as under :

The evidence collected in a search in violation of law does not become inadmissible in evidence under the Evidence Act. The consequence would be that evidence discovered would be to prove unlawful possession of the contraband under the Act. It is founded in Panchnama to seize the contraband from the possession of the suspect/accused. Though the search may be illegal but the evidence collected, i.e., Panchnama etc., nonetheless would be admissible at the trial. At the stage of filing charge-sheet it cannot be said that there is no evidence and the Magistrate or the Sessions Judge would be committing illegality to discharge the accused on the ground that Section 50 or other provisions have not been complied with. At the trial an opportunity would be available to the prosecution to prove that the search was conducted in accordance with law. Even if search is found to be in violation of law, what weight should be given to the evidence collected is yet another question to be gone into.

As observed by this Court earlier in Zakir Hussain v. State of U.P. (supra) :

In State of Himachal Pradesh v. Pirthi Chand and Anr. (supra), it has been held that illegality committed in investigation does not render the evidence obtained during that investigation inadmissible and inspite of illegal search, property seized on the basis of the said search would still form basis for further investigation and prosecution against the accused. The Apex Court has ruled that the manner in which the contraband is discovered may affect the factum of discovery but if the factum of discovery is otherwise proved then the manner becomes immaterial.

The powers of the Court to grant bail under the N.D.P.S. Act is subject to the provisions of Section 37 of N.D.P.S. Act, which clearly lays down that notwithstanding anything contained in the Code of Criminal Procedure, a person accused of an offence punishable for a term of imprisonment of five years or more (the accused-applicant in the instant case is punishable for imprisonment of more than five years), shall not be released on bail, where the Public Prosecutor opposes the application and the Court is satisfied that there are reasonable ground for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. In the present case, 260 gms. brown sugar has been recovered from the possession of the accused-applicant, the valuation of which in the F.I.R. itself has been put by the prosecution as Rs. 26,00,000 which is not controverted on behalf of the accused-applicant. In view of recovery of the brown sugar of such a huge amount, there are no chances of plantation of the said recovery with the accused. Having regard to the quantity of the brown sugar recovered from the possession of the accused-applicant in the presence of the Circle Officer, a Gazetted Officer, the applicant has not been able to lift the bar placed on the powers of the Court to grant bail by Section 37 of the N.D.P.S. Act. Whether the provisions of Section 50 of the Act has been complied by the prosecution or not, will be adjudged by the learned trial court at the time of the trial. It is made clear that the observations made above will not affect the finding of the trial court in any manner.

The bail application is rejected.

The accused-applicant is in Jail since April, 1997. The learned trial court is directed to expedite the trial and conclude the same within a period of four months from the date of receipt of the copy of the order from this Court or the presentation of the copy of the order before him by the learned Counsel.

A copy of the order be issued to the learned Counsel for the applicant on payment of usual charges.