ORDER
Palshikar, J.
1. By this petition, the petitioner seeks an order from this Court, directing his release from detention, under the provisions of Sec. 439 of the Code of Criminal Procedure, 1973, as he is in custody for being suspected of having committed an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act').
(2). The facts giving rise to the application for ball stated briefly, are that on 29.4.2000, the Superintendent of Police, Bhilwara, on suspicion that some intoxicating substance is likely to pass through the Stale, ordered sealing of the roads (Nakabandi) and checking of all the trucks passing on these roads. One Truck bearing No. GJ.7X-2648, coming from Chittorgarh, was stopped, the cabin was occupied by the driver, cleaner and one more person. The name of the driver was Onkar, the name of the Cleaner was Gheesa Lal and the third person Ramesh Chandra was the owner of the truck. Enquiries further revealed that the truck was loaded with Doda Post. The occupants of the truck were, therefore, given notice u/S. 50 of the Act and it was checked. The truck contained 78 bags of Doda Post, weighing 3.3 quintals. The present applicant-accused was thereafter, arrested and is in custody since then.
(3). It is contended on behalf of the applicant while arguing for release of the accused on bail that in the present case, bar as spelt out by Sec. 37 of the Act, is not attracted and the petitioner applicant is liable to be released on bail. It is further contended that the entire Doda Post belonged to a person who was holding a valid licence for dealing in Doda Post and al his instance, the goods are being transferred.The petitioner is, thus, a transporter of the goods on behalf of the legitimate owner thereof, who holds a licence to deal in Doda Post. According to the learned counsel, therefore, the owner of the truck has not committed any offence under the act and, therefore, as contemplated by Sec, 37 thereof, he is liable to be released on bail, pending trial.
(4). Several questions regarding grant of bail under the NDPS Act arise daily, bail is claimed inspite of Sec. 37, on various grounds. Several important aspects are liable to be considered in right perspective, because I am dealing in this case with a fundamental right of an individual guaranteed by Article 19 of the Constitution and the right can be suspended only by the process of law. The due process of law, that we are facing today, is contained in the NDPS Act. The provisions of Sec, 37 thereof prohibit grant of bail which was the direct consequence of restoration of right of liberty in certain cases only.
(5). Taking into consideration the recurring nature questions being argued for bail in such matters, it will be proper to write as exhaustively as possible, an order dealing with all aspects of grant of bail in the face of Sec. 37 of the NDPS Act. It would, therefore, be worthwhile, in the circumstances, to note in extenso, the provisions of the NDPS Act itself, the object of which was sought to be achieved by effective implementation of the provisions of the Act without losing sight of the fact that at stake is the fundamental right guaranteed by the Constitution, which is sought to be suspended by the provisions of Sec. 37 of the Act requiring refusal to release the accused on bail.
(6). The trafficing in the dangerous drugs psychotropic substances intoxicants etc. was controlled by the Prohibition Act which dealt with the manufacture, sale and confirmation of alcohol, the Opium Act of 1857 which dealt with manufacture, sale, consumption etc. of the opium, which was later replaced by the Opium Act of 1978 and for other dangerous drugs, it was Dangerous Drugs Act of 1930, with the passage of time, and the developments in the field of illicit drug trafficing and drug abuse at national and international level, several defeciencies in the existing laws were noticed and, therefore, an Act to consolidate and amend the law relating to Narcotic Drugs and Psychotropic Substances was sought to be. enacted. This Act was called Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No. 61 of 1985V It also provided forfeiture of the property dealing with trafficing in the piohibiting substances. It also provided by implementation of international convention on Narcotic Drugs and Psychotropic Substances.
(7). The minimum prescribed punishment for trafficing in opium is 10 years ligorous imprisonment. Since the punishments provided by the Act are stringent, enough provisions have also been made to protect the fundamental rights of the citizens, the provisions have been made to protect individual from atrocious exercise of powers under the Act by requiring the investigation to be done by a responsible officer by providing for search to be made in a particular manner and then, providing that persons, detained for violation of the provisions of the Act, may not normally be released on bail, except as provided by Sec. 37 of the Act. It is application of this provision of Section 37 that 1 am concerned with, in the present case.
(8). However, arguments have also been made in relation to the quantity of goods seized, the traffical environment and habitual history of Rajasthan requiring streamline interpretation of the provisions of law consistent with the object of the Act, at the same time protecting, as far as possible the fundamental and individual right of the person concerned.
(9). Arguments advanced at the bar, which are likely to be repeatedly raised, may be noted first:
1. That the embargo put on grant of bail under Section 37 of the Act is not total.
2. That in the provision, certain exceptions exist within Section 37 itself and for those exceptions, bail can be granted.
3. Thai in view of the authoritative pronouncements of the Hon'ble Supreme Court of India, holding provisions of Sec. 42 and 50 as mandatory and holding that violation of those provisions, if it arises, must result in acquillal of the accused. Then provisions of Sec. 37 can always be invoked and bail can be granted. Differently put the argument is prima facie obvious violation of provisions of Sec. 42 and or 50 of the NDPS Act is one of the exceptions mentioned in Sec. 37.
4. That for the past centuries in Rajasthan, occasional consumption of opium on certain festivities or mornings is traditionally accepted. If opium water is not offered during marriages of funerals, it is treated as an individual insull. Consumption of opium water as an addiction is also rampant in Rajasthan for generations. Usually, it is a concoction extracted after boiling Doda Post or after soaking Doda Post in water. It is pertinent to note that Doda Post means the dry poppy flower after opium milk is extracted from it and the seed is removed from it, very negligible traces of opium remain in the dry poppy flower and husk and consequently, a large quantity of husk is required for producing intoxicating concoction powder. It will have to be noticed that a vast number of people in Rajasthan keep some Doda Post (husk) with them to do 'manvaar' on occasions. Stocking of husk by an addict for intoxicating concoction is one thing and keeping of some husk for some, special occasion is another thing. The argument advanced is, that possession of husk to some extent, therefore, should be considered as an exception as contemplated by Sec. 37 of the Act. This aspect, therefore, should be kept in mind while granting or refusing bail in matters under the NDPS Act.
5. Prima facie, absence of evidence pointing out conscious possession of the contraband by the accused plays a vital role in the matter of grant of bail. Sec. 37 should be construed to mean if the possession is not conscious, the exception mentioned in Sec. 37 becomes applicable.
6. Seizure of the contraband from the place, where public access is available, is also an important aspect which will have to be considered. As an illustration, it was submitted that a man seeks permission to travel in a truck from the owner thereof for few kms. and he is, therefore, riding that truck, which happens to be stopped, checked and contraband is disclosed. Then, the possession of the contraband cannot be attributed to every occupant of the truck. There must be prima facie connection with the occupant and the contraband and knowledge of possession by the occupant.
(10). These arguments noted above are not exhaustive and this judgment dealing with that and creating certain categories of grant of bail, is not, therefore, conclusive.
(11). In order to properly appreciate the contentions raised, in this connection, it would be batter, if the provisions of the NDPS Act recurring in the arguments, mentioned above, are noted, in extenso:
'37. Offence to be cognizable am) non-bailable (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973,-
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for a term of imprisonment of five years or more under li 's Act shall be released on bail or on his own bond unless-
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes .the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations of granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the lime being in force on granting of bail.'
'42. Power of entry, search, seizure and arrest without warrant or authorisation.- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the Slate Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substances, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset, -
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating !o such drug or substance; and
(d) detain and search, and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance:
Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of any offender, he may enter and search such building, conveyance or enclosed place at any time between such set and sun rise after recording the grounds of his belief.
(2) Where an officer lakes down any information in writing under sub-sec. (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to him immediate official superior.'
'50. Conditions under which search of persons shall be conducted -
(1) When any officer duly authorised under Sec. 42 is about to search any person under the provisions of Section 41, Sec. 42 or Sec. 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 Sec. -12 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 refereed 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 should direct that search be made,
(4) No female shall be searched by anyone excepting a female.'
(12). From the above quoted Section, it will be seen that Sec, 37 puts an embargo on the right of the individual to seek bail under the provisions of the Criminal Procedure Code. However, the embargo is not total.
(13). Sec. 42 empowers officials named in it to enter, search, seize and arrest without warrant or authorisation any person for violation of any of the provisions of the Act. However,- it provides safeguards enacted by the Legislature for protection of the citizens and to prevent misuse of the powers conferred by it.
(14). Sec.50 gives the conditions under which search of person can be conducted. It also provides the safeguards necessary for avoiding misuse of the powers conferred by this Section.
(15). Il would be better to decide the above mentioned arguments and as far as possible lay down cases in which bail maybe granted under the provisions of the NDPS Act.
(16). The question regarding compliance of the provisions of Sec. 50 of the Act being obligatory, is no longer res integra. The matter was initially decided by a bench of two Hon'ble Judges of the Hon'ble Supreme Court taking into consideration the divergent views on the point between the two Judges of the bench, which was considered by the three Judges bench and ultimately, the mailer was referred to be decided by a five Judges bench in the case of State of Punjab vs. Baldeo Singh (1), Alongwith this appeal, several olher appeals were also referred and the five Judges of the Supreme Court of India unanimously laid down the law regarding obligatory compliance of the provisions of Sec, 50 of the Act. It has been unanimously observed by the Constitution Bench of the Supreme Court of India in the above referred case that the provisions incorporated in Sec. 50 are for the benefit of a person intended to be searched and are a safeguard to protect his rights and consequently it is imperative and obligatory on the Investigating Officer to ensure that the provisions of Sec. 50 are followed scrupulously both in letter and spirit. The Hon'ble Supreme Court of India has exhaustively dealt with the provisions in all its perspective and consequently it is obvious that the provisions of Sec. 50 are obligatory. The following words of the Supreme Court be noted in this regard:-
'........The protection provided in the section to an accused to beintimated that he has the right to have his persona! search conducted before a gazetted officer or a Magistrate, if he so requires, is sacrosanct and indefeasible - it cannot be disregarded by the prosecution except as its own peril,'
(17). From the authoritative pronouncement of the Supreme Court of India regarding compliance of Sec. 50, it is obvious, therefore, that non-compliance of the provisions of that section that result in all probability is acquittal of the accused for non-compliance of the said provisions. That being the case, where there is prima facie allegations of non-compliance with the provisions of Sec. 50 and there is reasonable material available on record to suggest that non-compliance has occurred, it would be a case in which the courts should be satisfied that there are reasonable grounds for believing that the accused is guilty of the offence and in that case, there is no harm if after taking into consideration other attending circumstances, release of the accused and grant of bail is positively considered.
(18). What has been said about Sec, 50 and it mutatis rnutanries applies in regard to provisions of Sec. 42 also. Therefore, in my opinion, in cases where non-complianceof provisions of Sec. 42 is alleged and there are reasons to believe that such allegations may be well founded the Court may after considering the attending circumstances, direct release of the accused on bail as is likely that he is not guilty of that offence. Non-compliance of the statutory provisions referred to above, are, therefore, two categories of cases where grant of bail can be positively considered. However, arguments were advanced in relation to certain other aspects also, which will have to be considered separately.
(19). It is obvious that no hard and fast rule can be laid down in cases in which bail ought to have been granted or the cases in which bail ought not be granted. It will depend upon facts of each case. The prima facie existence of violation if the provisions of section 42 and 50 will have to be seen in every case before the powers of releasing on boil as an exception u/S. 37 arc exercised. I repeal that the observations made by the herein do not me on that grant of bail is automatic in cases where there is violation of either Sec. 42 or of Sec. 50 or of both. !t must be established in each case before bail is granted all in that cases where such violation prima facie exist.
(20). Then that takes the to the cases where there is seizure of contraband goods from a place which is obviously assessible to all. For instance, a man is travelling in a goods truck in the driver's cabin and in the back are lying several bags of husk. The possibility of husk being there though connect the accused to the husk. Equally strong is the possibility of the accused having no knowledge of taking out about existence of husk in the truck. There must, therefore, be reasonable nexus between the presence of the accused at the place where the contraband is seized. If such nexus is not available, the case of the accused can be said to be innocuous and can be considered for grant of bail.
(21). In several cases a contention is raised that the accused is arrested and prosecuted under the provisions of the Act on the stipulation made by a co-accused i.e. a person from whose possession a contraband is seized, discloses to the investigating agency that he acquired possession of the contraband from another person and on the basis of this information that other person is arrested and he seeks release on bail. Obviously, in such cases, there is no question of contraband being seized from his possession. There also in all probability can be no question of violation of the provisions of Sec. 42 or Sec. 50 of the Act and unless the relationship between the crime and the accused shows on the statement of the co-accused but the possession of that co- accused originates from the applicant seeking bail. Without going into the question of credibilily of such a statement of an accused, it obviously is a case where the accused seeking bail is not directly involved in the case under investigation. He is investigated as accused because of the corruptions alleged by another accused. Courts may no be unjustified if it is considered as a strong circumstances for releasing the accused on bail as an exception to Sec. 37 of the Act.
(22). Then the question of possession of opium by person or in the house in the Slate of Rajasthan are required to be considered in its proper perspective. As already observed by the above while noting the contentions that for the past centuries, offering for consumption opium or opium water on certain festivities or funerals or obsequies or other is traditionally accepted in Rajasthan. If opium water is not offered during marriages or funeral, it is treated as an individual insult. Consumption of opium water as an addiction is also rampant in Rajasthan for generations together. The fact that the Govt. of Rajaslhan issues licences for sale of doda post and licence is issued for consumption thereof, will also have definite bearing on the issue as to whether possession of opium water or doda post in very negligible quanlity should result in deprivation of the personal liberty of the possessor because of the embargo put by Section 37 of the Act. Having considered this aspect from seriously in all its perspectives, I am of the opinion that bail could be granted inspite of Section 37 in cases where a person is in possession of opium upto 300 gms. or doda post upto 30 kg. becauselarge amount of doda post is needed (or extracting and addicting dose and, therefore, large quantity of doda post can stop in relation to other essential drug or psychotropic drug like heroine, cocain or smack as is popularly called, possession upto 2 gms. would be ohvioulsly for personal consumption and it could be considered as such if the attending circumstances point out that il was for personal consumption, the person in possession may be considered for grant of bail looking to the negligible quantity of the contraband seized. It must, however, be made clear at this stage that these cases should be positively considered as strong fundamental in relation to Article 14 inspite of Section 37. it does not and cannot mean that in every case where the possession is less than 300 grams of opium or 3 quintals of doda post or 2 grams of husk, the accused may be released on bail. If the attending circumstances are such that even the quantity seized is less and prima facie evidence of the man trafficing the drug is available, merely because the quantity is less cannot be a ground for directing the release on bail.
(23). I have considered above the contingencies in which grant of bail could be positively considered inspite of the bar of Sec, 37. It, however, does not and cannot mean that bail must be granted as a mailer of course when such circumstances exist. It shall always depend upon facts and circumstances of each case and it cannot be Thumb Rule as measure for the quantify and release the accused or such similar formula. There cannot be formula for releasing a person on bail. Every case shall depend upon facts and circumstances of the case in which it is argued for. The aforesaid observations, however, have been made by me for giving guidelines for the NDPS Courts in the Slate of Rajaslhan so that they do not as a matter of course, reject bail and as a matter of course, the accused is required to move this Court.
(24). Looking to the facts of the present case, it can be said that the accused was carrying doda post at the behest of a person who had a licence to deal in doda post. It cannot be said that the accused was in any manner connected with the offence for which he has been detained. I deem it just and proper to release that accused on bail.
(25). I, therefore, direct that the petitioner be released on bail on his furnishing a solvent surely in the sum of Rs. 40,000/- (Rs. forty thousand) with two sureties of Rs. 20,000/- (Rs. twenty thousand) each to the satisfaction of the learned trial Judge in whose court the case is pending.