Full Judgment
V.B. Bansal, J.
(1) Ibrahim @ Doctor has Filed this application for bail for the offence under Section 1992 CI.L.L.J. 399 of the Narcotic Drugs and Psychotropic Substances Act. 1985 (herein- after referred to as the Act) in case F.I.R. 244 of 1989 Police Station Lajpat Nagar. New Delhi.
(2) Briefly stated the facts as contained in F.I.R are that the special staff of South District had an information that some persons have been bringing heroin from Bareilly which they supply to persons dealing in heroin at Delhi. This information was developed by Inspector L.N. Rao and Constable Lalit Kumar was deputed as a Bogus purchaser to have contact with them. Accordingly Constable Lalit Kurnar established contact with javed Fasi-ud-din and Ibrahim@ Doctor and they agreed to supply 22 kg. of herein to Constable Lalit Kumar at the rate of Rs. 40.000.00 per kg. It was agreed that the supply would be made at about 12.15 P.M. on 29th July 1989 towards Ring Road near Mool Chand Hospital. thereforee a raiding party was organized by Inspector L.S. Brar in which police officials including Constable Lalit Kumar, Rajinder Singh, Hazara Singh and Milkeat Singh were joined. Lalit Kumar was sent as a bogus purchaser and one Varinder Kumar was joined from amongst the passersby. Lalit Kumar was directed to give an agreed signal. Two persons came at .the fixed place and stated having a talk with Constable Lalit Kumar. The agreed signal was given by Constable Lalit Kumar upon which members of the raiding party moved ahead and enclose Ibrahim @ Doctor petitioner and his companion.
(3) A constable was sent to Police Station Lajpat Nagar where from Acp Lajpat Nagar and Sho Police Station Lajpat Nagar were called. The bag in the hand of the petitioner was searched in the presence of Acp and Sho from which herein was recovered which on waging was found to be 10 kg. Samples were taken out 'and thereafter the samples and the remaining heroin were convened into parcels sealed with the seal Lab of Inspector L.S. Brar and seal Dds of the SHO. These were taken into possession after preparing the seizure memo. The samples on analysis, were found to be, of heroin.
(4) I have heard Shri M.C.Bhandare, Senior Advocate learned counsel for the petitioner and Shri R.K. Bahri learned counsel for the respondent. Learned counsel for the petitioner has submitted that there have been violation of the mandatory provisions contained in Section 42 and 50 of the Act inasmuch as the secret information available with the police had not been reduced to writing and the Investigating Officer failed to inform the petitioner mat if he so desired arrangements could be made for getting him searched in the presence of a Magistrate or a Gazetted Officer. He has, thus, submitted that on account of the lapse on the pan of the Investigating Officer in complying with these provisions the petitioner has a veiled right of being released on bail. He has also submitted that the Court can look into the non-compliance of the safeguard even at the stage of bail and placed reliance upon me case 1992 CI.L.L.J. 399 Lawrence D'Scuza v. Stale of Maharashtra and another. There is no doubt that the contention of the learned counsel for the petitioner finds support from this judgment. The question', however, for consideration is as to whether this judgment can be of any help to the petitioner at this stage. The purpose of the taking of search of a person suspected of having narcotic drugs or psychotropic substances in the presence of a Magistrate or a Gazetted Officer is to ensure that there is no possibility of a person being falsely implicated and the possibility of planting the recovery is eliminated. A perusal of the P.L.L dearly indicates that Acp was present at the time of the search. It is not disputed that Acp is a Gazetted Officer. The question as to whether it was necessary to inform the petitioner about this provision even if a Gazetted Officer was available would be gone into by the trial court. Suffice it to say at this stage that for consideration for bail it cannot be said that the petitioner is entitled to be released on bail merely on account of the petitioner having net been informed that his search could be conducted in the presence of a Magistrate of a Gazette Officer. Learned counsel for the petitioner place reliance upon the case 1991 Ci L.L. J. 232 Usman Haider Shaikh v. The State of Meharashtra. This was a case of an appeal against conviction before a Single Bench of the Bombay High Court. In the said case there was an assertion in the Court by the Police whimsies that the accused was informed and asked as to whether he wanted the search to be taken in the presence of a Gazetted Officer or Magistrate.
(5) However, this evidence was found to be an after thought and an attempt made by the prosecution to improve this case with a view to fill in the lacuna, since there was no mention of this fact in the statements of the witnesses recorded under Section 161 Criminal Procedure Code . The position is different in the present case and the trial court would come to a final conclusion on the basis of the evidence that may be produced during trial. . Learned counsel for the petitioner has also submitted that Constable Lalit Kumar was made a bogus customer and it is at his instance that the petitioner agreed to be present at the place of occurrence and so apprehenced. He has, thus, submitted that it was none of the job of the police to make police official as bogus customer and it would be difficult to believe such a witness, I am afraid no finding to that effect is called for at this stage while considering the application turn bail. Trial court would be drawing its own conclusion as appropriate stage as to how far this Constable lalit Kumar is to be believed.
(6) Learned counsel for the petitioner has also submitted that Inspector Lakhminder Singh Brar is himself of a shady character involved in cases of smuggling of heroin and that this would be another ground on which the petitioner could be allowed bail during the pendency of the case. Reliance has also been placed on judgment dated 29th November 1988 of Division Bench of this Court in criminal writ no. 383 of 1988 decided on 29th November 1988. A perusal of this judgment shows that Inspector Lakhminder Singh was facing trial for the offence under Section 454, 308, 325 Indian Penal Code and the Division bench was considering the question as to whether inspector Lakhminder Singh Brar should have been placed under suspension or not. No papers have been placed on record to indicate as to when Inspector Brar was involved in a case of smuggling of hereoin. Merely because Inspector Lakhminder Singh Brar was arrested in .some cases of smuggling of heroin subsequently cannot be a ground to release the petitioner on bail and the matter will have to be gone into during trial.
(7) Learned counsel for the petitioner has also submitted that as per the prosecution story there was prior information with the police and inspire of it no sincere efforts were made to join independent persons from the public to be the witness of .recovery. He has also submitted that Varinder Kumar the alleged independent witness in fact. is stock witness of the police having shady character already involved in three cases of N.D.P.S. Act. He has, thus, submitted that on account of the none joining of an independent person the prosecution story becomes doubtful and on this account alone the petitioner is entitled to bail since no explicit reliance can be placed only on the statements of the police witnesses. Reliance has been placed in this regard on an observation in case 1991 CI.L.L.J. 232 Usman Haidarkhan Shaikh v. The Stale of maharashtra (Supra). It has been held in the said judgment that where there is non-compliance of the provisions, it must be held that at any made the evidence of the police officer who failed to comply with the said provisions cannot be relied upon implicitly to base the conviction. Leased counsel for the petitioner has also relied on an observation of the Bombay High Court in case 1992 Ci L.L.J. 399 Lawrence D'souza v. State of Maharashtra and another to the effect that 'it would not thereforee be safe at this stage to act upon the Panchanamas and statements .of Panchas in the absence of any other independent cooperative material being available. In the circumstances the statements of Police witness cannot be treated.absolutely independent'. I am afraid no finding can be recorded by this Court at the time of disposal of the bail application. There is no law or any rule that official witnesses cannot be believed so as to record conviction and the of fail witnesses are not to be disbelieved only on account of their uniform. Reference in this regard can be made to the case State of Gujarat v. Raghunath Varmainao Basai 1985 S.C. 1092 and Kishan v. Stale 1984 Cha CC 20 The question as to whether a witness official or non-official is to be believed has to be decided considering the statement as a whole with reference to the prosecution story. The trial court will have to examine as to whether Varinder Kumar public witness is personally involved in some cases and what value is to be attached to his statement which he makes in Court.
(8) As already referred to the case of the prosecution has been that the petitioner was found in possession of 10 kg. of heroin.
(9) Considering all the facts and circumstances coupled with the alleged recovery, I am of the view that no case has been made on for bail. As a result, the application stands dismissed.