Mehar Chand vs State of Himachal Pradesh

Kuldip Chand Sood, J.—This petition for grant of bail u/s 439 of the Code of Criminal Procedure has been filed by applicant Mehar Chand, who was arrested in case FIR No. 74 of 2001 dated February 14, 2001 registered with the Police Station, Kullu, u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act.")

Prosecution case in brief is that on February 14, 2001, Inspector Roshan Lal along with other police officials was checking the buses in routine at Bajora. At about 7.45 p.m. a Bus "Harisons Travel" No. HP-01-1741 reached Bajora Check Post. The bus was signalled to be stopped. The bus was being conducted by Chuni Lal. Police started checking of the bus. When Police reached near seat No. 29 of the bus, it was found that accused-applicant was sitting on seat No. 29 with a bag. He was asked to open his bag and get it checked. The accused-applicant opened the Zip of the bag, smell of Charas started coming. When the bag was thoroughly searched two speakers CD and from two hidden pockets of the bag Charas was recovered. Accused was asked to come out of the bus along with the bag. Recovery memoes were prepared. The Charas so recovered was weighed and found to be 5 killo 800 grams. Samples were separately drawn. Applicant-accused was arrested and furnished with grounds of his arrest. Applicant-accused had earlier also filed an application for the grant of bail, which was dismissed as withdrawn with liberty reserved to the applicant to move an appropriate application after consideration of the charge against him. Accused is under trial before the learned Special Judge, Kullu. Charge against him was framed on May 24, 2001 and the case is now listed for recording evidence on July 11, 2001.

Case of the accused-applicant is that he has falsely been implicated and mandatory provisions of Section 50 of the Act have not been complied with. No independent witness was associated nor search was taken before the Gazetted Officer. It is also stated that no option was given to the accused-applicant for being searched before any Gazetted Officer or Magistrate.

Learned Counsel for the accused-applicant contends that it is the own case of the prosecution that when bag of the accused-applicant was searched, smell of Charas came from the bag and from that point of time provisions of the Act would be applicable and, therefore, it was necessary for the Investigating Officer to have taken the applicant-accused to the Gazetted Officer/Magistrate for search of the bag. He refers to T. Hamza Vs. The State of Kerala, ; Joseph Fernandez Vs. State of Goa, In the Matter of: Ahmed Vs. State of Gujarat, and Roy V.D. Vs. State of Kerala, and contends that in case mandatory provisions of Section 50 of the Act are not complied with, the trial is (sic)vitiated and accused would be entitled to acquittal. Taking into consideration these circumstances, it cannot be said that accused is guilty of offence under the Act.

There can be no dispute that when an Authorised Officer u/s 42 of the Act is about to search a person, on prior information, then he is obliged to inform such a person about his right of being searched in the presence of nearest Gazetted Officer/Magistrate, if he so opts and failure to do so render the recovery, made pursuant to such search, suspect and vitiate the conviction.

However, case of the prosecution admittedly is that the buses were being checked up at random and they had no prior information, merely because when they started search of the bag of the applicant, smell of Charas came, would not mean that police had prior information. Otherwise also, in my view, Section 50 of the Act will have application only in case of a search of a person, as distinguished from search of other places. Recovery was made, according to the prosecution, from the bag of accused-applicant which the accused-applicant was carrying and not from the person of the accused. In the circumstances, there was no question of following the procedure u/s 50 of the Act. In Gurbax Singh v. State of Haryana (2001) 3 SCC 28, accused-applicant was sitting in a compartment of Kalka Passenger Train which arrived at Karnal on the fateful day. Accused-applicant came to know that police (Sub-Inspector) was checking for smuggling and other anti-social elements. Accused-applicant become panicky and left the train from the door towards the side of engine carrying a Katta (gunny bag) on his left shoulder. On suspicion, he was apprehended by the police in the presence of the witnesses and it was found that he was carrying poppy straw weighing 7 kg. in a polythene bag in that gunny bag. A contention was raised by the Appellant-accused that the Investigating Officer did not follow the procedure prescribed u/s 50 of the Act of informing the Appellant-accused that he has a right to be searched in the presence of a Gazetted Officer/Magistrate. Referring to Kalema Tumba Vs. State of Maharashtra and Another, their Lordships observed that only when "the person" of an accused is to be searched then he is required to be informed about his right to be examined in the presence of a Gazetted Officer or a Magistrate. Relying upon the following observations of the Constitutional Bench in State of Punjab Vs. Baldev Singh, :

On its plain reading, Section 50 would come into play only in the case of a search of a person distinguished from search of any premises etc.

Their Lordships held that the provisions of Section 50 of the Act were not applicable in that case and would be applicable only in cases where the search of a person is carried out.

This apart, Section 37(1)(b) of the Act mandates that unless there are reasonable grounds for believing that accused is not guilty of an offence, with which he is charged, under the Act and that he is not likely to commit any offence while on bail, the court will not admit such accused on bail. At this stage, particularly when accused stands charged for the offence punishable under the Act, it is difficult to say that accused is not guilty of the offence with which he is charged when evidence is yet to be led.

In Balm alias Tazmul Hossain v. State of Orissa (2001) 2 SCC 566, the Petitioner was charged in July 1998 for having abetted the commission of the offence by his co-accused to commit an offence of possessing and/ or sale of cannabis ganja and manufactured drugs. Petitioner in that case was implicated on the statement of co-accused alleged to have been made before the Sub-Inspector. There were ten accused in that case, but only six accused persons could be arrested and four were stated to be absconding. Since four other accused were absconding the charges could not be framed against them. A bail application filed by the Petitioner on several grounds were rejected.

It was observed by their Lordships that when the trial is in progress it cannot be said that accused is not guilty of offence, if the allegations made in the charge are established, particularly, when the evidence having not been completely examined before the Special Judge. Their Lordships held :

In case where narcotic drugs and psychotropic substances are involved; the accused would indulge in activities which are lethal to the society. Therefore, it would certainly be in the interest of the society to keep such persons behind bars during the pendency of the proceedings before the court, and the validity of Section 37(1)(b) having been upheld, we cannot take any other view.

The apex court, however, directed that directions may be issued on the Administrative side for expeditious disposal of the case.

Taking into consideration the entirety of the circumstances and the position of the law discussed above, the accused-applicant at this stage cannot be admitted to bail. The bail application is accordingly rejected.

Any observations made hereinabove shall not be construed to be an observation on the merits of the case. The case shall be decided by the learned Special Judge, Kullu, on its own merits without being influenced by any observation.

It is, however, directed that the learned Special Judge, Kullu, shall dispose of this case as expeditiously as possible.