Full Judgment
M. Papanna, J.
1. The petitioner approached this Court under Section 439 of the Code of Criminal Procedure seeking pre-trial bail in connection with Badbazar P.S. Case No. 34/ 2000 corresponding to G.R. Case No. 16/ 2000 now sub-judice before the learned Sessions Judge-cum-Special Judge, Berhampur, his prayer for bail having been refused by the aforesaid Court.
2. Accusation against the petitioner is that he was having a licensed Bhang shop at Aska Road, in which he had kept contraband articles such as Ganja and Opium illegaly for which S.I. of Badbazar, P.S. while performing patrol duty on 3-4-2000 at about 2.30 p.m. received credible information regarding such possession and rushed to the spot along with his staff and searched the shop of the petitioner in his absence and seized 4 Kgs. of ganja and 5.440 Kgs. of opium in presence of witnesses and launched prosecution under Section 18/20(6) of the Narcotic Drugs and Psychotropic Substances Act (in short N.D.P.S. Act) against the petitioner.
3. The learned counsel for the petitioner has raised principally the following contentions :-
i) The mandatory provisions of Sections 42 and 50 have not been complied with by the prosecuting agency, and
ii) The alleged contraband articles have not been seized from the conscious possession of the petitioner.
On these two grounds, the learned counsel for the petitioner has persuaded the Court to grant pre-trial bail to the petitioner.
4. On the other hand, the learned Addl. Standing Counsel for the State has vehemently opposed the application for bail but he has fairly admitted that the S.I. of Police, Badbazar P.S. before proceeding to the spot, did not reduce in writing, the information that he received regarding illegal possession of contraband articles by the petitioner but according to him Sections 42 and 50 of the N.D.P.S. Act do not apply to the present case particularly when personal search of the petitioner was not necessitated in his absence from the shop and also when on routine patrolling, search was made in the shop in question.
5. In support of their contentions, the learned counsel for the parties have placed reliance on the following rulings which I am required to consider while adjudicating the present petition for bail.
6. Now the bone of contention is whether in spite of the bar in granting bail to the petitioner charged with offences under the N.D.P.S. Act, as contemplated under Section 37 of the Act, he is entitled to be released on bail particularly when mandatory provisions of Sections 42 and 50 of the N.D.P.S. Act have not been complied with. Relying on AIR 2000 SC 3397 (Union of India v. Ikram Khan), Shri S.B. Pradhan, learned Addl. Standing Counsel for the State contended that the petitioner facing trial under the above Act should not be granted bail without bearing in mind the mandatory provisions of Section 37 of the Act. In the reported case, in a proceeding under the N.D.P.S. Act against the accused trial did not commence for four years for which the High Court refused to exercise its power to cancel the bail granted to the accused earlier but the Apex Court has been constrained to observe as follows {Para 3) :
But, while considering the question of bail the Court had not borne in mind the provisions of Section 37 of the N.D.P.S. Act which are mandatory in nature and the Court must bear in mind the said provisions before deciding an application of bail, in case, the accused is facing trial under the provisions of the N.D.P.S. Act. In that view of the matter, the impugned orders of the High Court granting bail as well as refusing to cancel the bail cannot be sustained and we quash the same. The appeal stands allowed accordingly.
7. The learned Addl. Standing Counsel has placed further reliance on AIR 2001 SC 1002 : 2001 Cri LJ 1166 (Gurbax Singh v. State of Haryana) wherein the Apex Court has taken the view that Section 50 of the N.D.P.S. Act would be applicable only to those cases where the search of the person is carried out. His contention is that in the case in hand the petitioner having been not present admittedly in the shop in question during search, his personal search was out of question for which Section 50 of the Act has not been attracted.
8. I am in full agreement with the contention of the learned Addl. Standing Counsel for the State when he contends that there is no question of following procedure under Section 50 of the Act because from the person of the petitioner nothing could be recovered in his absence but Ganja and Opium were recovered from the shop in question. For this purpose reliance can be placed on Kalema Tumba v. State of Maharashtra 1999 AIR SCW 4544 : AIR 2000 SC 402 : 2000 Cri LJ 507. The Apex Court considered the mandatory requirement of Section 50 of the N.D.P.S. Act and held 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 presence of a Gazetted Officer or a Magistrate. Their Lordships further held that in view of the decision in the case of State of Punjab v. Baladev Singh AIR 1999 SC 2378 : 1999 Cri LJ 3672, the decision rendered by the Supreme Court in the State of Punjab v. Jasbir Singh (1996) 1 SCC 288, wherein it was held that though poppy husk was recovered from the bags of the accused, he was required to be informed about his right to be searched in presence of a Gazetted Officer or a Magistrate, stood over ruled. In facts of that case, the Apex Court held that heroine was found from the bags belonging to the appellant and not from his person and, therefore, it was not necessary to make an effort for search in presence of a Gazetted Officer or a Magistrate. The Apex Court also held further that when an empowered officer or a duly Authorised Officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under Sub-section (1) of Section 50 of the Act of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.
9. While discussing the points of law, I would like to quote paragraph-8 of the decision of the Supreme Court reported in AIR 2001 SC 1002 : 2001 Cri LJ 1166 (supra) for guidance :-
In view of the aforesaid decision of the Constitutional Bench, in our view no further discussion is required on this aspect. However, we may mention that this right is extension of right conferred under Section 100(3) of the Criminal Procedure Code. Subsection (1) of Section 100 of the Code provides that whenever any place liable to search or inspection is closed, any person residing in or being in charge of such place, shall on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities, for a search therein. Sub-section (3) provides that where any person in or about such place, a reasonably suspected for concealing about his person any article for which search should be made, such person may be searched, and if such person is a woman, the search shall be made by another woman with strict regard to decency. Sub-section (7) of Section 100 further provides that when any person is searched under Sub-section (3), a list of all things taken possession of shall be prepared and a copy thereof shall be delivered to such person. This would also be clear if we refer to search and seizure, procedure provided under Sections 42 and 43 of the building, conveyance or place. Hence, in our view, Section 50 of the N.D.P.S. Act would be applicable only in those cases where the search of the person is carried out.
In view of the dictum of the Apex Court as discussed above, no illegality or irregularity is held to have been committed by the prosecuting agency in the present case for non-compliance of the mandatory provisions of Section 50 of the N.D.P.S. Act and particularly when the petitioner was found absent during search of the shop in question.
10. As per the provisions of the N.D.P.S. Act, 1985, the credible information received by the Authorised Officer regarding illegal possession or storage of contraband articles should be reduced to writing and a copy thereof be communicated to the superior officer without delay. The only contention raised by the learned counsel for the petitioner is that although the patrolling party had received the information and had sufficient time for following the above procedure as contemplated under Section 42(1) and (2) of the Act, the same has not been complied with in the present case. No doubt, before proceeding to the shop in question to conduct search and seizure of the contraband articles, the I.O. did not take down the information in writing nor communicated a copy thereof to the petitioner officer nor recorded the grounds of his belief that an offence under Chapter IV of the Act had been communicated but admittedly, the S.I. of Badbazar P.S. in the present case was on routine patrolling duty and in course of performing such patrol duty he received information regarding the contraband articles being kept in the shop in question and he rushed to the spot and after due search, seizure of Ganja and Opium was made. In such a case, I do not agree with the learned counsel appearing for the petitioner when he contends that provisions of Section 42 of the Act need to be complied with Reliance can be placed in this regard on 1994 (7) Orissa Cri 674 : 1995 Cri LJ 1758. (Pilli Dilli Dora v. State of Orissa), wherein this Court has taken the view that on routine patrolling search made on suspicion non-compliance of Section 42 does not ipso facto affect conviction unless any prejudice is established. In view of the facts and circumstances of the present case when trial is yet to commence and the defence has ample opportunity to challenge this fact during trial, I am of the considered view that non-compliance of Section 42 of the Act by the prosecuting agency has not caused any prejudice to the petitioner nor resulted in failure of justice.
11. Relying on (1996) 2 Orissa LR 293 (Padma Lochan alias Padmabhusan Swain v. State of Orissa), the learned counsel appearing for the petitioner has contended that since the contraband articles have not been seized from the exclusive conscious possession of the petitioner, he is entitled to be released on bail. But the contraband articles in question having been recorded and seized from the shop owned and possessed by the petitioner at Aska Road in which he was selling bhang with licence and even though the same has admittedly been seized during his absence, I am not inclined to hold at this stage that the petitioner was not in exclusive possession of the shop from which contraband articles were recovered and seized as per the prosecution case. It is not out of place here to refer to the case of Babha alias Tazmul Hossain v. State of Orissa reported in 2001 (20) Orissa Cri R (SC) 600 : 2001 Cri LJ 1169, wherein the Apex Court has taken the view that while considering the application for bail, the Court is to see whether the statements made on behalf of the prosecution cases if believable would result in conviction. Their Lordships have cautioned that liberty of a citizen has to be balanced with the interest of the society. It has been held further that in case involving narcotic drugs and psyshotropic substances, it would be in the interest of society to keep the accused behind the bar during the pendency of the proceedings.
12. On the totality of materials placed before me for perusal, in view of Section 37(1)(a)(b) of the N.D.P.S. Act and also in the light of the present position of law is discussed above. I hold that there is no reasonable ground for believing that the accused is not guilty of the alleged offence under Section 18/20(b) of the N.D.P.S. Act, 1985, and for that reason, I cannot also hold that the petitioner will not commit any offence in future if released on bail for which the prayer for bail made by the petitioner being not entertainable is hereby refused but, however, the learned trial Judge is hereby directed to hear the proceeding expeditiously so as to dispose of the same on its own merit on the basis of legal evidence within six months from the date of communication of the order without being influenced by any observation made in this order.
The Criminal Misc. Case is dismissed.