Badar Durrez Ahmed, J.
1. The case for the prosecution is that the petitioner along with two other co-accused were each carrying bags on their left shoulders. From the bag which was carried by the petitioner, two kilograms of charas is said to have been recovered. Since the commercial quantity quantified for charas is one kilogram, Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as 'the NDPS Act') would be attracted.
2. The learned counsel for the petitioner has put in written submissions, however, at the time of arguments he restricted his arguments to the point that the mandatory provisions of Section 50 have not been complied with. He drew my attention to the not ice issued to the petitioner at the time of the search. The notice is reproduced at page 15 of the paper book. In particular, he drew my attention to the portion of the notice which says that 'a gazetted officer is also present within the raiding party'. He then referred to the decision of the Rajasthan High Court in the case of Sukhpal Singh @ Pala v. State of Rajasthan reported in 1996(3) Crimes 194 wherein it is clearly stated that the gazetted officer referred to in Section 50 must be one who is different from the raiding party. The learned counsel for the petitioner then referred to the decision of the Supreme Court in the case of State of Punjab v. Baldev Singh : (1999)6SCC172 and particularly to para 87 thereof. He stated that if the mandatory provisions of Section 50 are not complied with, then the failure of complying with such a provision may not vitiate the trial but would render the recovery doubtful and vitiate the conviction of the accused. And, thereforee, he summed up his arguments by saying that as the petitioner was not produced before the appropriate gazetted officer in terms of Section 50 of the NDPS Act, the entire recovery becomes suspicious and the conviction would be vitiated and, thereforee, even if the provisions of Section 37 of the NDPS Act were to apply, there are reasonable grounds at this stage to believe that he did not committed any offence under the Act. He, thereforee, requested this Court that the application for bail be allowed.
2. The learned counsel for the State, at the outset, submitted that this was not a case of personal search as the contraband, i.e., two kilograms of charas was not recovered from the 'person' of the accused but from the bag which was hanging on his left shoulder and, thereforee, compliance with Section 50 of the NDPS Act insofar as the recovery of two kilograms charas from the bag is concerned would not be necessary. He referred to various decisions to indicate that recovery from a bag hanging on a shoulder of a person is not the same thing as the recovery of contraband from his 'person'. He referred to the decisions reported in : 2000CriLJ507 , : 2000CriLJ509 , : AIR2000SC3626 . Ultimately, he referred to the decision of the Supreme Court in the case of State of Himachal Pradesh v. Pawan Kumar reported in 2005(1) JCC 107 (Nar) and in particular he referred to paragraph 10 thereof which reads ad under:
'10. A bag, briefcase or any such article or container, etc. can, under no circumstances, 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 the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc, of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. thereforee, it is not possible to include these articles within the ambit of the word 'person' occurring in Section 50 the Act.'
3. Upon reading the aforesaid interpretation given by the Supreme Court to the expression 'person' it becomes clear that the bag hanging on the shoulder in this case would not fall within the ambit of the word 'person' occurring in Section 50 of the NDPS Act, and, accordingly, the provision of Section 50 would not be applicable.
4. Accordingly, a case for grant of bail has not been made out. The learned counsel for the petitioner, however, submitted that since the trial is lingering on for quite some time and the petitioner has been in custody since 04.03.2002 and only six out of 16 witnesses have been examined, this Court may issue a direction for expediting the trial. The learned counsel for the State submitted that this is a fair request and submitted that looking at the situation of the case, the trial can be concluded within three months from the next date of hearing before the Trial Court.
5. Accordingly while rejecting this bail application, I direct that the trial be concluded as early as possible preferably within three months from the next date of hearing before the Trial Court. Neither party shall take any adjournment in the matter.
It is made clear that all observations made herein are prima facie in nature and ought not be taken into consideration at the trial of the case.
This application stands disposed of.
A copy of this order be sent to the Trial Court.
dusty.