Gurdit Singh vs Union Territory of Chandigarh

Sat Pal, J.

This petition has been filed by the petitioner under Section 439 of Code of Criminal Procedure (in short, the Code) seeking bail pending trial in the case FIR No. 19/95, dated 26th February, 1995, registered under Section 18(1)(a), Narcotic Drugs and Psychotropic Substances Act, Police Station Sector 39, Union Territory of Chandigarh.

As per the allegation made in the FIR, the petitioner was apprehended on 26th June, 1995 and as a result of his search, 439 grams of opium was recovered from him.

Mr. Rajput, learned counsel appearing on behalf of the petitioner submitted that in the present case, there is a violation of Section 55 of the NDPS Act as the alleged recovery of the opium was made by the Assistant Sub Inspector, who was not authorised to search the petitioner and further the seal of the Officerincharge of the Police Station was not affixed on the seized material. In support of this submission, he placed reliance on a judgment of this Court in the case of Makhan Ram v. State of Punjab, 1995(2) RCR 424 . He further submitted that in the present case, the provisions of Section 36A of the NDPS Act have also been violated as the remand of the petitioner was given by the Ilaqa Magistrate for a period exceeding 15 days though the Ilaqa Magistrate could authorise the detention for a period not exceeding 15 days. In support of this submission, the learned counsel placed reliance on a judgement of this Court in Bhupinder Singh v. State of Haryana, 1994(2) Recent Control Report 302 .

Mr. Rai, learned counsel appearing on behalf of the Union Territory of Chandigarh, submitted that there was no violation of Section 55 of the NDPS Act in the present case as the seal of the authorised officer was affixed on the seized material. He further submitted that in any case, this point can be decided only after the evidence is led by the prosecution. The learned counsel admitted that in the present case, the Ilaqa Magistrate had granted remand for a period exceeding 15 days in this case. He, however, contended that since the petitioner was now being produced before the Designated Court, he is not entitled to the concession of bail.

I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the record. The question whether an accused was entitled to the concession of bail in case there was a violation of Section 36A of the Act, came up for consideration before a learned Single Judge of this Court in Criminal Misc. No. 9322M of 1993 (Janta Singh v. State of Punjab). The matter was, however, referred to a larger Bench by the learned Single Judge vide order, dated 17th August, 1993. The learned Single Judge, however, in that case admitted the petitioner to bail while referring the matter to a larger Bench. Thereafter, the matter was heard by a Division Bench of this Court on 30th November, 1993, and vide order of the same date the Division Bench directed that the matter be placed before the Hon''ble the Chief Justice for constitution of a Full Bench to resolve the controversy. I have been informed that the matter is still pending.

Keeping in view the facts stated hereinabove, and also the quantity of the alleged recovery made from the petitioner, I am of the view that it is a fit case for grant of bail. In this connection, reference may be made to my order dated 15th May, 1995 made in Crl. Misc. No. 4697M of 1995 (Nek Singh v. State of Haryana). Accordingly, I direct that the petitioner be admitted to bail on furnishing bail bond in the sum of Rs. 25,000/ with two sureties of the like amount to the satisfaction of the Chief Judicial Magistrate, Chandigarh.

JUDGMENT accordingly.