Intelligence Officer, Narcotic Control Bureau, South Zone, Madras-17 vs C. Govindasamy, T. Packiaraja and L. Jayakumar

N. Arumugham, J.—The Intelligence Officer, Narcotics Control Bureau, South Zone, Madras-17 who is the petitioner in all the three cases

was the respondent before the Court below and filed these petitions under S.943 of the Code of Criminal Procedure, seeking the cancellation of

the bail granted by the learned Principal Sessions Judge to the respondents in the above three cases in Crl. M.P. No. 2662 of 1993, dated

18.6.1993, Crl. M.P. No. 2995 of 1993, dated 30.6.1993, and Crl. M.P. No. 3376 of 1993, dated 13.7.1993.

The petitioner in all the three cases is one and the same. But however, the respondents in these cases are different. The said three cases arise out

of one common occurrence in which all the three respondents are involved, though separate orders were passed by the learned Sessions Judge

and against which the above three different petitions were filed. Since the questions to be decided in all the three cases are common, I have

proposed to dispose the same by pronouncing a common order accordingly.

3.The brief facts which led to the filing of these petitions under Ss.439 and 482 of the Code of Criminal Procedure may be stated as follows:

On information, the Officers of the Narcotic Control Bureau, South Zone, Madras, the petitioner herein spotted the three respondents herein who

came to the private vehicle parking slot at the Central Railway Station on 24.5.1993, and when they were about to start their Maruti Van, bearing

Registration No. TN-04A-8266 intercepted by disclosing their identity and the purpose for which they intend to check the inmates. The

respondents in the three cases were identified. On enquiry, it came to know that Packiaraja and Kumar, the respondents in Crl. O.P. No. 8817

and 8948 of 1993 were returning from New Delhi by Tamil Nadu Express and the respondent in Crl. O.P. No. 7452 of 1993 came to the station

to pick up the above said persons in the vehicle above referred to. The respondent by name Govindasamy stated further that he is the brother-in-

law of the respondent in Crl. O.P. No. 8817 of 1993 by name Packiaraja and the other respondent was his associate accompanied him during the

journey. The staff of the petitioner then examined the multicoloured bag which was in the hands of Jayakumar, the respondent in the third case

before the witnesses. On opening, it was noticed that certain used clothes together with one rose coloured mattress were found packed in a

polythene cover. On a closer examination it was noticed that it was a bed spread with 2 pillow covers and red coloured flowers embroidered on it.

On opening the same, the Officers noticed a polythene cover placed inside with a brown coloured substance along with a railway ticket showing

the destination from Delhi to Jhansi and subsequently extended till Madras, from the bag. Then the Officers examined the cement coloured zip-bag

which was found in the possession of Packiaraja, the respondent in Crl. O.P. No. 8817 of 1993. They found some old used personal clothing

along with a bundle wrapped in a Tamil Newspaper which was tied by a violet polythene thread and on opening they found a bundle of 100 rupee

denominations of notes to the extent of Rs. one lakh. After testing the brown powder and recording the answers for the substance of heroin, the

three respondents along with the van with the witnesses who were present were brought to their office at T. Nagar for further examination as the

place of interception was not conducive to proceed further in accordance with the procedural law. Then it was found as the brown sugar weighed

about 500 gms. and accordingly it was seized along with the currency of Rs. 1,00,000/- with certain incriminating documents from the dash board

of the said Maruti van under the mahazar, in the presence of witnesses attested, followed by two representative samples of 5 gms, approximately

were drawn from the said brown substance for chemical analysis. The voluntary statements given by the said three respondents were then

recorded by the petitioner''s staff under S.67 of the Narcotic Drugs and Psychotropic Substances Act, admitting their respective guilt.

Consequently, they were arrested on 25.5.1993 and remanded to judicial custody.

It is thus accordingly the case is being investigated by the staff of the petitioners in accordance with the procedural law.

From the voluntary statements given by the three respondents inter alia states that the respondent in the first case has been working as a driver

to his sister''s husband by name T. Packiaraja, the respondent in the second case, on a monthly salary of Rs. 2,000/- that he was employed for the

purpose of carrying the persons and goods, that during his employment, he had the occasion to meet Kumar, Gani, etc. who were supposed to be

the friends of Packiaraja, that they used to meet and talk about smuggling of narcotic drugs for some time in the past; that during the first week of

May, 1993, one Chinnadurai, a Sri Lankan, contacted very often, that the said Chinnadurai was staying at Merdeka Lodge, Mannadi, Madras,

that he was also a smuggler of narcotic drugs, that on 9.5.1993, Packiaraja asked him to go with him to meet Chinnadurai for the purpose of

procuring the narcotic drug from Delhi, that at 9:00 a.m. on that day, he went to the said lodge along with Packiaraja in his Maruti van and met

Chinnadurai, that after the meeting, they decided to go to Delhi on the same night, that while they were returning home, Packiaraja informed that

Chinnadurai and himself were going to Delhi by Tamil Nadu Express, that he would contact the respondent over phone from Delhi, that on

14.5.1993 morning Packiaraja contacted him over phone and asked him to contact one Indiran, a Sri Lankan, who was staying at Merdeka

Lodge and to receive Rs. 40,000/- from him and to hand over the money to Kumar instructing him to go to Delhi by Tamil Nadu Express on that

night itself, that the said Kumar, is also known as Jayakumar, that Packiaraja would meet the said Kumar near Veena Lodge, near Imperial

Theatre in Paharghanj at Delhi, that he contacted Kumar at Ramachandran Lodge over phone and asked him to come to Central Railway station,

near the telephone booth at 8:30 p.m. and asked him to come prepared to go to Delhi, that he went to Murdeka Lodge and met the said Indiran

and asked him the money which was told by Packiaraja, that Indiran gave a sum of Rs. 40,000/-, that on that night at 8:30 p.m. he met the said

Kumar at Central Station, handed over Rs. 40,000/- and asked him to hand over the same to Packiaraja at Delhi, that on 21st, Packiaraja

contacted him from Delhi over phone and stated that he will be coming to Madras on 24.5.1993 by Tamil Nadu Express and asked him to bring

Maruti van to the Station, that Packiaraja informed him that he met Kumar at Delhi, purchased narcotic drug through Kumar and he would be

bringing the drug on 24.5.1993 along with Packiaraja by Tamil Nadu Express, that accordingly he went to the Central Station in the Van at about

7:30 a.m., that Packiaraja and Kumar came by Tamil Nadu Express, that he received them and took them to the Maruti Van, that when they were

about to leave the Central Station in their Maruti van, the Officers intercepted the vehicle and searched in the presence or mahazar witnesses, that

the officers seized 500 gms, of heroin from Kumar and Rs. 1,00,000/- from Packiaraja and some documents from the said Maruti van, and that

the said Packiaraja had assured him to pay more money for assisting him in dealing with narcotic drugs.

Similar statements were also given voluntarily by the respondents in the two subsequent cases substantiating the very statements made by the

respondent in the first case. For the above said reason, I do not propose to traverse the very contents of the respective statements given by

Packiaraja and Jayakumar in detail. On the basis of the said statements and recovery, the respondents were arrested after informing them of their

arrest, later produced before the Court and consequently remanded to judicial custody. But however, during the said sojourn neither of the

respondents had any complaint of any ill-treatment, coercion or so at the hands of the officers of the petitioner or their involuntary procurement of

the statements from them. Thus, on the same day, the respondents were remanded to judicial custody.

Then respective petitions were filed before the learned Principal Sessions Judge, on behalf of the respondents, praying for the release of the

respondents on bail. But however, a counter was filed on behalf of the petitioner objecting to the grant of bail by contending inter alia in detail that

the role played by the accused in the illicit transaction, since it relates to the heroin seized in the case and the respondents were knowingly

concerned in the illegal transaction as referred to above and the role was to transport the heroin knowing that it was herein and transporting the

same having been brought by the respondents in subsequent two cases and the respondent in the first case joined and that all the three had actually

taken charge of the said substance followed by the apprehension of them by the officers concerned, thus, facing the charge one under Ss.8(c), 21

and 29 of the N.D.P.S. Act.

While extracting so, it is useful for me to refer the specific case of the respondents is that the respondent in the first case was not found in

personal possession of heroin at the time of apprehension and that he has not admitted that he was in possession of the said heroin nor was having

Indian currency to the tune of Rs. 1,00,000/-. But on the other hand, the specific case of the petitioner is that heroin to the quantity of 500 gms.

was found in possession of the respondent in the third case and the currency to the extent of Rs. 1,00,000/- was found in possession of the

respondent in the second case.

After having heard the arguments of both sides, in the context of the rival pleas and objections taken on behalf of the respective parties, the

learned Principal Sessions Judge has allowed the petitions and consequently granted bail to all three respondents by the respective impugned

orders passed as above referred to and accordingly enlarged the three respondents on bail. Aggrieved at this, particularly with reference to the

illegality and impropriety under which the respective impugned orders were passed by the learned Principal Sessions Judge, the petitioner has

come forward with the above three Criminal Original Petitions with a view to interfere with the said impugned orders and consequently to set aside

the same as aforestated.

Mr. P. Rajamanickam, the learned Central Government Public Prosecutor appearing for the petitioner in all the three cases by reading the very

observations made by the Principal Sessions Judge in the impugned order dwells his main attack white canvassing this petition on the ground that

the learned Sessions Judge while granting the bail has virtually failed to find any non-compliance of the mandatory provisions of the N.D.P.S. Act,

in the context that the petitioner namely the Intelligence Officer, Narcotic Control Bureau, South Zone, Madras is not a Police at all so as to follow

the procedures laid down under the Code of Criminal Procedure, but however, they are separate and independent Investigating Agency

empowered to investigate various offences under the N.D.P.S. Act by following the procedures specifically laid down for them; and that further in

the absence of non-compliance of any mandatory provisions, the respondent is not entitled to get the bail under S.439 of the Code as per the

settled principle of judicial view and that thirdly the learned Principal Sessions Judge has totally overlooked the very object and preamble of the

various provisions of N.D.P.S. Act, particularly with reference to S.37 of the Act which deals with the scope for granting bail for the accused for

the offences under the N.D.P.S. Act. The learned counsel further contends that the very reasoning given by the learned Principal Sessions Judge

while granting the bail to the respondents herein cannot be sustained even for a single minute for the reason of its illegality and not provided

anywhere in the enactment or the case law. For the said reasons, mainly it was contended that the impugned orders granting bail by the Court

below are to be held as vitiated with every illegality and impropriety and that for the reason of the full compliance of the mandatory provisions of

law the Court below ought not to have granted the bail and that therefore the said impugned orders are to be interfered with by setting aside the

same.

Per contra, Mr. Sambamurthy, the learned counsel appearing for all the respondents in the three cases strenuously tried to persuaded me by

contending that firstly on the day of occurrence when the three respondents were first intercepted, the Officers of the petitioner before checking the

persons of the respondents and their vehicle failed to disclose their identity as well as not provided any opportunity to them to make the search of

their persons before any Gazetted Officers or the nearest Magistrate, the non-compliance of which would clearly land the petitioner for the concept

of the non-compliance of the mandatory provisions of S.50 of the N.D.P.S. Act; And that secondly, taking the respondents to the Office of the

petitioner situate at T. Nagar and seizing the contraband under the cover of mahazar would perfectly not be in compliance with Ss.52A and 53 of

the N.D.P.S. Act which all totally go to show that the Narcotic Control Bureau, an Investigating Agency, has not followed the procedure

mandatory held to be followed in law and that therefore as per the decided case law by various High Courts the above non-compliance clearly

leads to a prima facie conclusion that the respondents have not committed the offences as alleged and that therefore they were entitled to bail. In

this Vegard the learned counsel would contend that rigour of S.37 of the N.D.P.S. Act would not in any way fetter the power of the Court to

exercise its jurisdiction under S.439 of the Code, that as such the learned Principal Sessions Judge in granting the bail to the respondents herein

was perfectly and well within the ambit of the legal concept and province and that therefore the present petitions filed bear no merits at all.

In the light of the above rival contentions the only point which arises for consideration is whether the impugned orders passed by the learned

Principal Sessions Judge in all the three cases are vitiated with any illegality or impropriety and if so are they liable to be set aside?

THE POINT:- In the impugned order passed by the learned Principal Sessions Judge in Crl. M.P. No. 2662 of 1993, dated 18.6.1993

involving the first respondent C. Govindasamy is concerned it is seen that it is not the case of the petitioner that the narcotic drug or psychotropic

substance namely the heroin to the quantity of 500 gms. was found in the possession of this respondent and accordingly it was seized from him

under the cover of mahazar. So also, so far as the currency of 100 rupee denomination to the extent of Rs. 1,00,000/- is concerned, the relevant

person from whom it was recovered under the cover of mahazar is the respondent in the second case and not the respondent in the first case.

Further, it has to be noted that it was the specific case of the petitioner that the respondent in the first case happened to be the brother-in-law of

the respondent in the second case and an employee actually aided and facilitated the other two respondents in the commission of the offences of

one under Ss.8(c), 21 and 27 of the N.D.P.S. Act for the facts above referred to in detail as culled out from the voluntary statements recorded

from each of the respondents herein. If this is so, at the outset, I may observe that the learned Sessions Judge has not even applied his mind to the

real facts involved in this case and that was the reason why he mistook the fact that the contraband was recovered from the possession of the

respondent in the first case instead of the respondent in the third case. Therefore, a full force was identified in the arguments advanced by Mr.

Rajamanickam, the learned Standing Counsel for the petitioner that while granting the bail the learned Principal Sessions Judge has not even

applied his mind to the real facts and averments made available.

Coming to the question whether the procedural directions provided to be mandatorily followed in Ss.50, 52A, and 55 of the N.D.P.S. Act has

been followed in this case by the petitioner or not, I have to advert the copy of the Seizure Mahazar prepared by the petitioner as Well as attested

by the independent witnesses. From the very reading of the Seizure Mahazar and its very contents it is found that the moment the said three

accused were spotted in the Van and were about to start in the said vehicle it was intercepted by the petitioner and immediately they were told by

the intercepting Officers as what they were, for what purpose they intercepted and what they were going to do. In this regard it is seen that on the

very interception of the van and the three respondents by the petitioner''s staff, the respondents were informed that the persons and vehicle are

going to be checked for the purpose of any offence under the N.D.P.S. Act or otherwise. If that was the position, then, as was clearly mandatory

in S.50 of the N.D.P.S. Act, the respondents ought to have required the petitioner in so unambiguous words that their persons ought to be

searched or checked before the Gazetted Officers or the nearest Magistrate for any reason and that accordingly the option provided in the Act

ought to have been exercised by the respondents and certainly not by the petitioner. In this regard, particularly in the context of the very contents

or the seizure mahazar, I am not in a position to accept the first contention of the learned counsel for the respondents that S.50 of the N.D.P.S.

Act has not been complied with on factual aspects. On the other hand, it has been fully complied with. It clinches further that no mandatory

direction has been violated while intercepting and making the search of the three respondents in this case. With regard to the legal aspects, in view

of the decision rendered by this Court in Crl. O.P. No. 10826 of 1993, dated 21.9.1993, the contention that searching officers shall inform the

accused to exercise their option that as to whether they require their persons to be searched in front of the Gazetted Officers or the nearest

Magistrate or not is not a mandatory direction and that therefore it is not at all possible to hold that the requiring of the accused to exercise their

option that as to whether they are required to be searched in front of a Gazetted Officer or nearest Magistrate is not a legal mandate which causes

the non-compliance of or violation of the mandatory provisions. Therefore, for the above said reasons, I am totally unable to pursued myself to

accept the first contention advanced by the learned counsel for the respondents.

Coming to the subsequent contentions made on behalf of the respondents, a careful perusal of the Seizure Mahazar and the Remand Report

clinches the matter in detail to the effect that the petitioners and their staff had clearly followed all the procedural directions built in Ss.50, 52A, 53,

53A and 55 so also sending the report to immediate superior within the time stipulated and so on. In this regard, it has become useful to refer the

decision rendered by this Court in the above unreported judgment which deals with the scope and ambit of the concept of search distinguishing

from the recovery and seizure since both words were seem to be synonymous in nature, but distinguishable with each other and totally distinct with

reference to its actual meaning. I have already decided that a Search is totally different from the Seizure and both cannot be taken as one concept

in so far as the investigation to be conducted by the investigating agency.

To say the patent of sampling of contraband taken by the petitioner as provided under the Special Rules framed by the Government of India

pursuant to the relevant provisions of the N.D.P.S. Act, it has to be noted that the object of providing the Special Rules is only meant for the

different investigating agencies clearly empowered to investigate the offences, under the N.D.P.S. Act except the Police. In so far as the regular

Police is concerned, there cannot be any difficulty in holding that the Police Investigating Agencies are bound to follow the procedure laid down in

the various provisions of Code of Criminal Procedure and Criminal Rules of Practice. But however, the petitioner in this case, the Narcotic Control

Bureau, a Special Investigating Agency, has been clearly empowered to investigate the offences under the Act and that therefore it is not proper to

expect them to follow the procedure laid down under the Code of Criminal Procedure by skipping over the provisions contained in the N.D.P.S.

Act for the purpose of investigation. If that being so, then taking of the samples and keeping them under safe custody as has been clearly revealed

from the Seizure Mahazar and the Remand Report clinches the fact that none of the provisions of the N.D.P.S. Act has been violated in so far as

the alleged Commission of offences by these respondents are concerned.

If the procedural directions built in various provisions of the N.D.P.S. Act are bound to have been followed in this case, in the absence of any

non-compliance of the same for which no material is available, then the rigor of S.37 of the N.D.P.S. Act as laid down in the Narcotics Control

Bureau v. Kishan Lal (1991 LW (Cri.) 53), by the Supreme Court cannot be avoided for any reasons and the respondents in these three cases are

clearly in the teeth of S.37 of the N.D.P.S. Act. It would make it clear further that the powers of the High Court under S.439 of the Code has

been clearly fettered by virtue of S.37 of the N.D.P.S. Act. If that is the position, then I find no difficulty at all in holding that the respective

impugned orders passed by the learned Principal Sessions Judge in granting bail to all the three respondents are without any jurisdiction and as

such the same are vitiated with every illegality and impropriety and as such liable to be set aside. The very reasoning given by the learned Principal

Sessions Judge in granting the bail to the respondents in these cases are not contemplated by any law procedural or otherwise or the case law,

though various case law have been cited by the Principal Sessions Judge, the same are not helpful to the respondents in availing the procedural

privilege of bail contemplated under S.439 of the Code.

Thus having considered every contentions urged on behalf of the petitioner and having perused the respective impugned orders, in the light of

the above factual and legal aspects, I am fully convinced to hold that all the three impugned orders passed by the learned Principal Sessions Judge

are liable to be interfered with and set aside. Even so, it is seen that the learned Principal Sessions Judge has not followed the mandate and the

procedure contemplated under S.37 of the N.D.P.S. Act as was held by the Supreme Court in the above referred citation. The Public Prosecutor

ought to have been given the notice while hearing the petitions seeking for the bail and his objections must have been noted down and considered

in full. In the instant case it is seen that the learned Standing Counsel appearing for the petitioner has filed a detailed written statement raising very

many legal pleas inter alia aforestated and none of the said pleas has been considered or even adverted by the learned Principal Sessions Judge.

On this ground alone the impugned orders passed are liable to be set aside. Further, the condition required to be provided, in case, even if the bail

is granted, has not been followed and exercised by the learned Principal Sessions Judge, which in my respectful view, is not proper and correct in

the eye of law.

Mr. Sambamurthy, learned counsel appearing on behalf of the respondents has cited number of case law in support of his contentions mainly

for the reason that in considering an application seeking to cancel the bail granted already, the relevant allegations, of non-compliance of the

conditions imposed by the Court which granted the bail are necessarily to be established and that in the absence of the same, the learned counsel

would contend, in such a case, no bail granted already is to be cancelled. After going through all the case law cited by the learned counsel, I have

noticed that the said case law do not render any help or assistance to the learned counsel for the respondents for the simple reason that all the

decided case laws are only for the offences that come under the first category of S.4 of the Code of Criminal Procedure and not under the second

category of the Code. In this regard, it has to be noted that the offences falling under the various Sections of the N.D.P.S. Act are of a special

category to be dealt with stringent punishment and made with a view to regulate the trafficking of the narcotic drugs and psychotropic substances

which is a continuing menace to the entire civilized society of the world and that was the reason why stringent punishment is provided by the

legislature and that in this regard the said object cannot be overlooked or treated so likely. None of the case law have emerged out with regard to

the scope of S.37 of the N.D.P.S. Act which curtails the power of this Court under S.439 of the Code. Therefore, in view of the ruling of the

Apex Court held in Narcotics Control Bureau v. Kishan Lal (1991 LW (Crl.) 53), for the reasons aforestated, the respondents in these three

cases clearly lander in the teeth and rigour of S.37 of the N.D.P.S. Act and overlooking the same the impugned orders passed by the learned

Principal Sessions Judge, as aforestated in these three cases are clearly illegal and erroneous, vitiated with every impropriety and for the said

reasons, I have no hesitation to set aside the same. With great constraint and respect to the learned counsel for the respondents, I am not in a

position to accept any of his contentions projected on behalf of the respondents, but on the other hand, after having fully considered the entire legal

gamut and factual aspects in this case, I fully endorse my view with the contentions advanced by Mr. Rajamanickam, learned Standing Counsel for

the petitioner.

In the result, for the reasons stated above the petitions in Crl. O.P. Nos. 7452, 8817 and 8948 of 1993, succeed and stand allowed. The

impugned orders passed in Crl. M.P. Nos. 2662 of 1993, dated 18.6.1993, Crl. M.P. No. 2995 of 1993, dated 30.6.1993, and Crl. M.P. No.

3376 of 1993, dated 13.7.1993, by the learned Principal Sessions Judge are hereby set aside. Consequently, each of the respondent is hereby

directed to surrender before the Court immediately. Bail bonds, if any, executed by them are hereby cancelled. If each of the respondent fails to

surrender, the petitioner is directed to move the Court and take appropriate steps to secure them immediately to the judicial custody. All the three

petitions are ordered accordingly.