Vijay Prasad Sao vs State of Jharkhand

Ajit Kumar Sinha, J.—The present bail application has been preferred to grant regular bail to the petitioner in connection with Narcotic Case No. 6 of 2008, arising out of Patna Police Station Case No. 48 of 2008 dated 06.04.2008, registered for the offence under Sections 17 and 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ''N.D.P.S. Act''), now pending in the court of learned District & Sessions Judge, Palamau at Daltonganj.

Counsel for the petitioner insisted for consideration of certain judgments and in particular the provisions u/s 50 of the N.D.P.S. Act. Counsel for the petitioner has contended that the aforesaid Narcotic Case is not sustainable in view of settled law due to non-compliance of statutory requirement u/s 50 of the N.D.P.S. Act. He has further contended that in any case the petitioner is entitled to regular bail during the pendency of trial.

As per the complaint case and the First Information Report it appears that the petitioner along with another while trying to flee away were chased and apprehended and from their possession 29 Kg. of liquid opium from a white jar, hidden in a grey colour air bag, was recovered along with Nokia Mobile and money and, accordingly, the seizure list was prepared. The accused-petitioner could not produce any document for the lawful possession of the commodities. It has also come to light that the large quantity of opium was carried for commercial transaction.

The learned Special Judge under N.D.P.S. Act, Palamau at Daltonganj, vide its impugned order dated 18.07.2008 hold that the accused were carrying the liquid opium without any valid authority and the case diary is replete with the materials to show that the accused was involved in clandestine business of opium. The learned Special Judge has also recorded that the report of the State Forensic Science Laboratory has confirmed that the substance seized from the possession of the petitioner was opium and, accordingly, considering the quantity of the opium seized rejected the prayer for bail of the petitioner.

I have considered the judgment referred by the learned Counsel for the petitioner and also Section 50 of the N.D.P.S. Act, which is quoted as under:

Conditions under which search of persons shall be conducted.- (1) When any officer duly authorized u/s 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 any one excepting a female.

(5) When an officer duly authorized u/s 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 u/s 100 of the Code of Criminal Procedure, 1973 (2 of 1974).

(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 seventy-two hours send a copy thereof to his immediate official superior.

On reading the aforesaid Section it is clear that the mandatory requirement is that the person who is to be searched needs to be conveyed his statutory right as to whether he wishes to be searched before the Gazetted Officer or Magistrate. The aforesaid proposition has been well settled. In State of Himachal Pradesh Vs. Pawan Kumar, a Bench of 3 Hon''ble Judges of the Hon''ble Supreme Court while dealing with a similar issue as to whether the safeguards provided by Section 50 of the N.D.P.S. Act, 1985 regarding search of any ''person'' would also apply to any bag, briefcase or any such article or container etc. which is being carried by him and after analyzing the earlier decision and on interpretation of the statute and the definition provided under different dictionaries, the Hon''ble Supreme Court held that a bag, briefcase or any such article or container etc. can under no circumstance be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of a body of a human being and, thus, the word ''person'' under the scheme of the Act and the context under which it has been used in the Section naturally means a human being or a living individual unit and not an artificial person. This issue was again considered by the Hon''ble Supreme Court in a recent judgment, delivered in the case of State of Haryana v. Ranbir alias Rana as reported in 2006 (3) J.L.J.R. 117 (wherein, the Hon''ble Supreme Court has relied upon and reiterated the decision, rendered in State of Himachal Pradesh Vs. Pawan Kumar, .

The learned Counsel for the petitioner has further cited 2007 (2) J.L.J.R. 105(Ajay Kumar v. State of Jharkhand), wherein, the learned Single Judge of this Hon''ble Court was pleased to allow the appeal and acquitted the appellant therein. However, the facts therein were different as it was a case of personal search of the accused person and not in respect of some bags and in view of non-compliance of Section 50 of the N.D.P.S. Act the conviction of the appellant was set aside. It will be noteworthy to point out that in paragraph No. 8 the learned Single Judge has reiterated and followed the same ratio of the judgments, as referred to hereinabove, passed by the Hon''ble Supreme Court.

Again the Hon''ble Supreme Court in Dilip and Another Vs. State of M.P., had the occasion to consider the same issue and while allowing the appeal, the Hon''ble Supreme Court upheld the aforesaid view and held that the provision of Section 50 of the N.D.P.S. Act will not be required to be complied with in case the search was of the scooter or any other article.

I have considered the matters in view of the fact that the counsel has referred to and relied upon those judgments for grant and/or rejection of bail. The aforesaid view is based on the well settled proposition of law.

Considering the large quantity of the opium seized from the bag in possession of the petitioner and the factum and the allegation in the First Information Report that the same was used for commercial purposes, I am not inclined to enlarge the petitioner on bail at this stage. Prayer for bail, made on his behalf, is, accordingly, rejected.