Jogeswar Halder vs State Of Odisha

V. Narasingh, J.

Heard Mr. Parida, learned counsel for the Petitioner and Mr. Maharaj, learned Addl. Standing Counsel.

The Petitioner is an accused in connection with 2(a)CC Case No.28 of 2022 on the file of learned Sessions Judge-cum-Special Judge, Cuttack, arising out of P.R No.64 of 2022-23 for commission of the alleged offence under Section 20(b)(ii)C of the N.D.P.S Act.

Being aggrieved by the rejection of his application for bail U/s. 439 Cr.P.C. by the learned Sessions Judge-cum-Special Judge, Cuttack by order dated 15.12.2022, the present BLAPL has been filed.

It is the case of the prosecution that during patrolling duty excise officials tried to detain a Hyundai Verna Car bearing registration number WB-54N-2444. The Petitioner tried to decamp from the spot but he was nabbed by the local people. The Petitioner was arrested after following the statutory prescription of the N.D.P.S Act, since he was found to be in conscious and exclusive possession of the contraband (ganja) to the tune of 75 Kg. The final P.R. was submitted on 05.11.2022 and by filing memorandum, it is stated y the learned counsel for the Petitioner that in the meanwhile charge has been framed.

Learned counsel for the Petitioner, Mr. Parida submitted that the Petitioner is entitled to be released on bail because of infraction of the statutory provisions of Sections 42 and 50 of the N.D.P.S Act and it is the further submission that no independent witnesses have been examined. To fortify his submission, learned counsel relies on the following judgments:

I. Boota Singh & others vrs. State of Haryana, (2021) 82 OCR (SC) 667.

II. Raghu @ Rahul Rajput Thakur vrs. State of Odisha, (BLAPL No.2430 of 2021 disposed of on 14.10.2022).

III. Arif Khan alias Agha Khan vrs. State of Uttarakhand, AIR 2018 SC 2123.

Per contra, learned counsel for the State, Mr. Maharaj, learned ASC submitted that there has been compliance of statutory provisions and the independent witness has been examined and in fact independent witness Karunakar Das has signed in Form C-2.

The Petitioner has annexed the final P.R. (Form C-5) to the written note of submission. On perusal of the same, it can be seen that the name of the witness Karunakar Das figures in the said list. Recitals Form C-5 indicate prima facie compliance of Section 50 of the N.D.P.S Act. The same is extracted hereunder for convenience of ready reference:

“Suspected detention, option letter to be searched, compliance report received, search, possession, recovery, test, weighment, seizure, arrest and forwarded in the Hon’ble Court.”

Provisions of Sections 42 and 50 of the N.D.P.S Act, infraction which is being alleged, is extracted hereunder for convenience of ready reference:

“42. Power of entry, search, seizure and arrest without warrant or authorisation.- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,—

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector.

Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.]

xxx xxx xxx

“50. Conditions under which search of persons shall be conducted.- (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973.

(6) After a search is conducted under sub-section

(5), the officer shall record the reasons for such belief which necessitated such search and within a seventy-two hours send a copy thereof to his immediate official superior.”

While alleging violation of the mandatory stipulation in Section 42 of the N.D.P.S Act, the Petitioner has relied on the judgment in Boota Singh (supra).

At the outset, it is worth noting that in the said case in Paragraph-12 of the judgment, the Apex Court recorded its conclusion as under:

“13. It is an admitted position that there was total non-compliance of the requirements of Section 42 of the N.D.P.S Act.”

And, the Apex Court further went on to reiterate that “…in no case, total non-compliance of Section 42 can be accepted”.

In Arif Khan alias Agha Khan (supra), Paragraphs 28 to 30 are relevant for the purpose of consideration in the case at hand, which are culled out for ready reference:

“28. 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; 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; 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; 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.”

On a bare perusal of the same, it can be seen that in the given facts of the said case, the Apex Court came to a finding that there has been non-compliance of mandatory provision of Section 50 of the N.D.P.S Act as extracted herein above.

The Petitioner has further relied on the judgment of this Court in the case of Raghu @ Rahul Rajput (supra). In the said case, referring to the dictum of the Apex Court this Court came to a finding that there has been violation of Section 50 of the N.D.P.S Act and keeping in view the dictum of the Constitution Bench of the Apex Court in the case of Vijay Singh Chandubha Jadeja vrs. State of Gujarat, (2011) 2 SCC 609 directed release of the Petitioner therein.

It is apt to note that the bail application of the co-accused Vikash Dahaiya vrs. State of Odisha came for consideration before this Bench in BLAPL No.11273 of 2022 and by order dated 24.02.2023 reported in 2023 Crl. L.J (NOC) 466 (Ori.), the decision in Raghu @ Rahul Rajput (supra) was analyzed and this Court (Coram V. Narasingh) came to the finding that there was no infraction of Section 50 of the N.D.P.S Act and this Court was constrained to observe that “It is manifestly clear that the judgment of this Court at Annexure-3 was passed on account of misrepresentation of facts by both sides.”

It is apposite to state here that Annexure-3 referred to in the said judgment of this Court is the judgment relied on by the learned counsel for the Petitioner i.e. Raghu @ Rahul Rajput (supra).

Learned counsel for the State, Mr. Maharaj, submitted that there are materials on record to indicate that there has been compliance of Sections 42 and 50 of the N.D.P.S Act and it is his further submission that both the judgments of the Apex Court relied on by the learned counsel for the Petitioner are at the stage of post conviction and hence have no application.

It is further stated by the learned counsel for the State that the judgment of this Court in the case of Raghu @ Rahul Rajput (supra), in the facts of this case is not at all applicable. Hence, it cannot be of any assistance to the claim of the Petitioner.

It is also urged by the learned counsel for the State that the decision in the case of Vijay Singh Chandubha Jadeja (supra) categorically states that infraction of Section 50 of the N.D.P.S Act has to be considered at the time of trial. And, in this context, he relied on Paragraph-31 of the said judgment, which runs thus:

“We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez and Prabha Shankar Dubey is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh case. Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.”

Thus it is stated that since admittedly the case is pending trial, the allegation relating to violation of Section 50 of the N.D.P.S Act cannot be taken into account at this stage.

Referring to the case diary, which is on record, learned counsel for the State has placed reliance on the noting of the I.O relating to compliance of Sections 42 and 50 of the N.D.P.S Act. The said noting of the I.O is extracted hereunder:

“Today, I opened my case diary. On this day, I was performing patrolling duty at 5.30 A.M along with my departmental staff 1) Gokhendra Parida, A.S.I of Excise,

2) Salhay Hembram, Excise Constable, 3) Sanjay Das, Excise Constable, 4) Lakshmidhar Khuntia, Excise Constable, 5) Prakash Kumar Satapathy, Excise Constable, 6) Madhusmita Mahanta, Lady Excise Constable of my unit with Govt. vehicle No.OR-05-G-5253 at Tangi toll gate (NH-16) under Tangi P.S. area to check & raid of illegal possession, transportation or export of excisable articles. On this point of time, I saw one person driving a white colour “Hyundai Verna” Car bearing registration No.WB-54N-2444, by keeping a white colour jari basta on the rear seat coming from Cuttack towards Tangi toll gate (NH-16). As soon as he saw our patrolling vehicle, tried to flew away from the spot. On suspicion, I detained them at Tangi toll gate. In the meanwhile, some passers-by people gathered there. From the actionable intelligence, strong odour blowing from the jari bastas of that vehicle, I suspected the alleged jari bastas were possessed by nothing but Ganja (Cannabis). Then, I disclosed my identity as well as the cause of suspicious detention to the persons. In presence of the available witnesses, I asked their name and told their name in a fumbled manner. Believed upon the intelligence, I intimate the same to my immediate higher authority, i.e. Sri Satyajit Khatua, IIC of Excise, E.I & E.B, Unit-II (C.D.), Cuttack by cell phone and he also directed me to search immediately as per provisions laid down under N.D.P.S Act. I requested to the 10 to 15 persons standing there for a witness. Neither they agreed to be a witness nor they stated their name. Only one person out of them namely Karunakar Das interested to be the seizure witnesses.”

So far as compliance of Section 50 of the N.D.P.S Act is concerned, the following has been noted by the I.O in the case diary. The same is extracted hereunder:

“As per the direction of my immediate higher authority and in presence of Sri Karunakar Das, I explained the suspected regarding provisions laid down U/S. 50 of N.D.P.S. Act that they have every liberty to option to be searched in presence of any Gazetted Officer or an Executive Magistrate. I wrote down the same and handed over the letter separately to the accused persons separately for compliance. The suspectee stated that they knows Hindi and English. After receiving the option letter individually by suspectee, they being satisfied with the provision, refused either option offered in written rather opined to be searched by me on the spot in presence of the available witnesses. I received the compliance letter from them on the spot.”

It is clearly borne out from the facts of the present case that it is a case of chance detection and it is trite that in the case of chance detection there is no scope to make any prior entry. And, in the very judgment of this Court relied on by the learned counsel for the Petitioner in the case of Raghu @ Rahul Rajput (supra), the said aspect has been dealt with extensively referring to the judgment of the Apex Court in the case of Karnail Singh vrs. State of Haryana, (2009) 8 SCC 539.

The materials on record adverted to hereinabove clearly indicate that the I.O in the case at hand had given intimation post detection and even otherwise in the facts of the present case this Court is persuaded to hold that the alleged non-compliance of Section 42 of the N.D.P.S Act involves examination of factual facets which can only be done in a trial. It is not at all desirable to refer to any allegation of such non-compliance pending trial when prima facie there are materials to the contrary.

It has to be borne in mind that total non-compliance of Section 42 of the N.D.P.S Act can never be countenanced. But in the considered opinion of this Court, the factual matrix of the case at hand does not warrant such a finding. In fact while dealing with Section 42 of the N.D.P.S Act in the case of Karnail Singh (supra), the Apex Court has cautioned that “These provisions should not be misused by the wrongdoers/offenders as a major ground for acquittal. Consequently, these provisions should be taken as discretionary measure which should check the misuse of the Act rather than providing an escape to the hardened drug-peddlers.”

As already noted, prima facie there is compliance of Section 50 of the N.D.P.S Act.

In the case of State of M.P. vrs. Kajad, (2001) 7 SCC 673, while dealing with the restrictions under Section 37 of the N.D.P.S Act, the Apex Court has observed thus:

“Negation of bail is the rule and grant of bail is an exception.”

On a conspectus of the materials on record, this Court does not find any merit in the bail application in view of the twin restrictions imposed in terms of Sections 37(1)(b)(ii) of the N.D.P.S Act. This Court cannot lose sight of the fact, as rightly pointed out by the learned counsel for the State that the Petitioner is also a flight risk.

Since admittedly charge has been framed and the Petitioner is in custody since 09.05.2022, learned Court in seisin is requested to conclude the trial, preferably within a period of three months from the date of receipt/production of a copy of this order. If necessary the official witnesses be examined through V.C mode.

It is needless to state that the observations made herein are only for the purpose of consideration of Petitioner’s bail application and ought not to be construed as expressing any view regarding his complicity which has to be adjudicated in an independent manner in the impending trial and while considering the grounds as claimed, this Court has no iota of doubt that learned Special Judge will take into account all aspects including alleged violation of the statutory provisions and non-examination of the independent witnesses etc.

Liberty is granted to the Petitioner to renew his prayer if the trial is not concluded within the time stipulated.

The BLAPL is accordingly disposed of.

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