Allahabad High Court
Wahid Ali vs Narcotics Control Bureau Lucknow on 12 July, 2023
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Neutral Citation No. - 2023:AHC-LKO:47354 Court No. - 11 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13590 of 2021 Applicant :- Wahid Ali Opposite Party :- Narcotics Control Bureau Lucknow Counsel for Applicant :- Mukesh Kumar Tewari,Anil Kumar Pandey Counsel for Opposite Party :- Akhilesh Kumar Awasthi Hon'ble Pankaj Bhatia,J.
1. Heard learned counsel for the applicant and Shri Akhilesh Kumar Awasthi, learned counsel for the and perused the record.
2. The accused-applicant, who alleges that he was the driver of the vehicle in question, seeks bail in Case Crime No.29 of 2021 under section 8/21/25/29 N.D.P.S. Act, P.S. - N.C.B. Lucknow, District-Lucknow.
3. From the documents on record, it appears that on 12.07.2021, a search was carried out based upon the information received from the informers that huge quantity of drug is being transported. From the search memo, which is on record indicates that on receiving the said information, the team of the Narotics Control Bureau, Lucknow reached Chauka Ghat Railway Crossing and on their call the police team of the Police Station-Ram Nagar also arrived. The memo also records in terms of the information received, at about 10:15 P.M., one Honda WRV Car was passing which was stopped and in the said car, two persons were sitting who are Mohammad Imran and Wahid Ali (applicant). It is further recorded that the said two persons confessed before the team of N.C.B. Lucknow the aforesaid fact of carrying drugs. The memo also records that the N.C.B. team duly informed the accused of their rights under Section 50 of the Act, the said applicant wanted the search to be carried out in the presence of Gazetted Officer and for complying with the provisions of Section 50, the Circle Officer Ram Nagar-Shri Dinesh Kumar Dubey was contacted and was requested to come over the spot. It further alleges that in presence of the said Gazetted Officer both the persons were searched in person and nothing was found with them in person. However, when the car was put on search, Morphine was recovered which was kept in a White Bag weighed at 2.250 Kg along with currency notes of an amount of Rs. 2,00,000/-. The search memo on record contains the signature of the two accused as well as the officer of N.C.B. Lucknow. Howsoever, it does not include the signature of the Gazetted Officer- Shri D.K. Dubey, in whose presence the search was said to be carried out. In pursuance to the search carried out and the recovery memo, the samples were sent by the N.C.B. for chemical analysis and the accused were apprehended for being tried under the N.D.P.S. Act. It is informed that subsequently a criminal complaint has been filed against the said two accused in the competent court of law and the trial is going on. The present bail application has been filed as the first bail application filed by the applicant was rejected on 12.08.2021 by the learned Special Judge, N.D.P.S. Court at Barabanki.
4. The Counsel for the applicant argues that there are substantial illegalities in the manner in which the search and seizure has been carried out. He argues that admittedly as per the recovery memo, the search was carried out on persons as well as in the vehicle and allegedly in the presence of a Gazetted Officer. He argues that the Gazetted Officer has not signed the recovery memo, which is also accepted by the learned counsel for the respondent. In the light of the said deficiency, he argues that the entire recovery becomes suspect. He also draws my attention to the mandate of Section 50.
5. He specifically places reliance on Section 50 sub-section 5 to argue that the search has to be carried out in terms of the mandate of Section 100 of the Code of Criminal Procedure. He draws my attention to Section 100 of the Cr.P.C. which is as under:
"100. Persons in charge of closed place to allow search.
(1) Whenever any place liable to search or inspection under this Chapter 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.
(2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by sub- section (2) of section 47.
(3) Where any person in or about such place is reasonably suspected of 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.
(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.
(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.
(6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search. and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person.
(7) 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.
(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860 )."
6. On the strength of Section 100 sub-section 5 of the Cr.P.C., as quoted hereinabove, he argues that it is incumbent that the search memo has to be signed by the Gazetted officer as is authorized to do so. On the strength of these two provisions i.e. Section 50 sub-section 5 and Section 100 sub-section 5, the counsel for the applicant argues that the search without a signature does not satisfy the test of a valid search provided under Section 50 of the N.DP.S. Act.
7. Learned counsel for the applicant further argues that in the present case, even the mandatory requirement of Section 42 has not been followed with inasmuch as the requirement of Section 42 sub-section 2 have not been complied with. He next argues that the applicant was a driver and thus no material exists to conclude that the applicant had conscious possession over the alleged drugs.
8. In support of the said arguments, he draws my attention to the statement of the co-accused who has stated that the drugs in question were kept at his residence and were transported through the vehicle and the driver had driven the vehicle. He thus argues that the applicant did not have any conscious possession of the alleged drugs and thus he cannot be tried for an offence under the N.D.P.S. Act. He next argues that the samples allegedly drawn from the offending seized drugs were not forwarded within a time span of 72 hours, which is a mandatory requirement in terms of the circular No.1/88. He further argues that even the point No.1.5 of the said circular requires that the sample should be drawn in the presence of the witness was not done. He further argues that the applicant has no criminal antecedent and thus, he satisfies the mandate of Section 37(b)(ii) of the N.D.P.S. Act. He lastly argues that the applicant has no criminal antecedents and is in custody since 13.07.2021 and the examination of the first witness out of seven witnesses proposed to be examined is going on and there is no likelihood of the trial being concluded in the near future and thus, he argues that pre-trial detention violates the rights of the applicant under Article 21 of the constitution of India. In support of his argument as recorded above, the counsel for the applicant has placed reliance on the judgments of Hon'ble Apex Court passed in Union of India vs. Shiv Shanker Kesari reported in (2207) 3 SCC (Cri) 505; Sk. Raju @ Abdul Haque @ Jagga vs. State of West Bengal reported in 2019 (106) ACC 303; State of Rajasthan vs.Parmanand reported in 2014 2 SCC (Cri) 563; Sanjeev and another vs. State of Himachal Pradesh reported in 2022 2 SCC (Cri) 522; Union of India vs. Bal Mukund and others reported in 2010 1 SCC (Cri) 54; Avtar Singh and others vs. State of Punjab reported in 2003 (1) JIC 134 (SC); Criminal Appeal No.523 of 2005 decided in the case of Ranjitsingh Brahmajeetsing Sharma vs. State of Maharashtra and Another and also the judgment of this Court in Criminal Misc. Bail Application No.42918 of 2021 decided in the case of Aditya Kumar vs. Union of India Through Narcotic Control Bureau, Lucknow.
9. Shri Akhilesh Kumar Awasthi appearing on behalf of the respondent on the other hand strongly raised objections to the application for bail. He argues that the argument raised by the counsel for the applicant deserved to be rejected. He also argues that insofar as the argument that the Gazetted Officer has not signed the recovery memo, he argues that the Gazetted Officer was called and his signature were taken on the notice sent to him however, he argues that as the entire recovery procedure takes time, by then the Gazetted Officer had left. However, there is no reasons to believe that the Gazetted Officer was not present during the search operation as such the recovery memo even if it does not bear the signature of the Gazetted Officer would satisfy the test of Section 50 read with Section 100 of the Cr.P.C. He further argues that the offending goods were recovered from the vehicle in which both the accused were occupants. He argues that there is presumption of conscious possession as there is nothing on record to say that the applicant is not knowing about the possession of the drug which burden has to be discharged by the applicant. He places strong reliance on the judgments of the Hon'ble Supreme Court passed in the case of Union of India vs. Mohd Nawaz Khan reported in AIR 2021 SUPREME COURT 4476 wherein the Honb'le Apex Court had considered the scope of the conscious possession along with the other issues that were raised before the Hon'ble Apex Court. He further argues that the conscious possession against the applicant should be accepted by virtue of law as clarified in the case of Mohd. Nawaz Khan (supra) and he also places strong reliance on the judgment of the Honb'le Apex Court in the case of State of Kerala Etc. vs. Rajesh Etc. reported in AIR 2020 SUPREME COURT 721 which interpreted the word 'reasonable ground' used in the Section 37 of the N.D.P.S. Act. He also placed heavy reliance on the judgment of the Hon'ble Apex Court in the case of Union of Indian vs. Ratan Malik @ Habul reported in 2009 AIR SCW 3648 wherein the Hon'ble Apex Court had held that while granting bail in appeal, the relevant criteria such as not finding anything from the possession, the detention of the accused for a period of three years and no chances of the appeal being heard would not be a relevant criteria.
10. In the light of the said submission, he argued that the bail application deserves to be rejected. However, he does not dispute the fact that the first witness is being examined for establishing the offence in terms of the complaint filed by the N.C.B. Lucknow. He also does not dispute the fact that as many as seven witness are proposed to be examined in support of the allegations leveled in the complaint. As regards the submission of the counsel for the applicant that the samples were not sent within a period of 72 days, he argues that the samples were actually sent however they were returned with remarks 'refused' probably because of the wrong address. Thus, the said benefit cannot be given in favour of the applicant as there was no fault by the N.C.B. in sending the samples. He further argues that there was compliance of the mandate of Section 42 and to that extent, the argument of the counsel for the applicant merits rejection.
11. In terms of the arguments raised by the counsels across the bar, as noted above, this Court is to decide whether a case for grant of bail is made out or not. Before going into the merits of the contention, it is essential to note that across the line of precedents settled by the Hon'ble Supreme Court, it is well settled that for grant of bail in respect of commercial quantity, the conditions as prescribed under Section 37 of the Act have to be taken into consideration before granting of the bail. Section 37 of the Act is as under:-
"[37. Offences to be cognizable and non-bailable.--
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)--
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for 2[offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] 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 on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.]"
12. In terms of the mandate of Section 37(1)(b)(ii), it is essential that the pubic prosecutor be heard and it is also essential that the Court should record its satisfaction 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. The word 'reasonable ground' for believing that the accused is not guilty came up for interpretation and the consistency in so far as the phrase 'reasonable ground' is concerned was summarized by the Hon'ble Apex Court in the case of Union of India through Narcotics Control Bureau vs. Mohd. Nawaj Khan (supra). The relevant paras are as under:
"19 The standard prescribed for the grant of bail is 'reasonable ground to believe' that the person is not guilty of the offence. Interpreting the standard of 'reasonable grounds to believe', a two-judge Bench of this Court in Shiv Shanker Kesari (supra), held that:
"7. The expression used in Section 37(1)(b)(ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged.
8. The word "reasonable" has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word "reasonable".
"7. ... In Stroud's Judicial Dictionary, 4th Edn., p. 2258 states that it would be unreasonable to expect an exact definition of the word 'reasonable'. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy."
(See Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar [(1987) 4 SCC 497] (SCC p. 504, para 7) and Gujarat Water Supply and Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. [(1989) 1 SCC 532] [...]
10. The word "reasonable" signifies "in accordance with reason". In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. [(2003) 6 SCC 315]
11. The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty."
(emphasis supplied) 20 Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed."
13. The said phrase was also explained by the Hon'ble Supreme Court in the case of State of Kerala vs. Rajesh and others (supra) wherein the Hon'ble Supreme Court held as under:
"20. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC, but is also subject to the limitation placed by Section 37 which commences with nonobstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates."
14. On a plain reading of Section 37 (1) (b) (ii), to form an opinion that reasonable grounds exists for believing that he is not guilty, beside the test as laid down by the Hon'ble Supreme Court and as recorded above, the grounds for forming opinion or view is that reasonable ground exists that he may not be held guilty in the trial.
15. Hon'ble Supreme Court had the occasion to deal with the aspect of Section 37 and the conditions prescribed therein in the case of Mohd Muslim @ Hussain vs. State (NCT of Delhi) reported in 2023 LiveLaw (SC) 260. While dealing with the scope of Section 37, Hon'ble Apex Court observed as under:-
"18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail. What is meant by "not guilty" when all the evidence is not before the court? It can only be prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws - be balanced against the public interest.
19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.
20. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India vs. Ratan Malik19). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having 19 (2009) 2 SCC 624 regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail."
16. In the present case, the applicant is charged of committing an offence under Section 8/21/25/29 N.D.P.S. Act. Section 8 of the Act prohibits any person from possessing any narcotic drug or psychotropic substances as well as to produce, manufacture, sale, purchase etc. Section 8 of the Act is quoted hereinbelow.:-
"8. Prohibition of certain operations. --No person shall--
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation: Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:
1[Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.]"
17. In the present case, the applicant is charged with illegal 'possession ' of the drug and the prosecution, has to take steps for punishing the applicant for 'possession' and imposition of punishment prescribed under Section 21, 25 and 29 of the Act.
18. The Act provides the manner in which the power for determining the causation of offence under Section 8 of the Act is prescribed in chapter V of the said Act. Section 42 of the said Act confers the power on the Officers defined therein to enter and search any building conveyance or place and to seize the drug or substances in the manner prescribed. Section 42(2) of the Act further places an embargo on the Officer concerned to record grounds for his belief and send a copy thereof within a time span of 72 hours to the immediate official superior. Section 50 of N.D.P.S. Act with which we are primarily concerned in the present case provides as under:-
"50. Conditions under which search of persons shall be conducted.--
(1) When any officer duly authorised under section 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 anyone excepting a female.
(5) When an officer duly authorised under section 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 under section 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."
19. On a plain reading of Section 50 mandates that at the time of search, if the accused so desires should be taken without any unnecessary delay to the nearest Gazetted Officer as mentioned in Section 42 of the Act or to the nearest magistrate. It is further empowers the Officer defined under Section 42 to detain the person till the time, the accused can be brought before the Gazetted Officer or the Magistrate. After the accused is brought before Gazetted Officer or the Magistrate, the powers are conferred to such Gazetted Officer or Magistrate to further discharge the person, if there is no reasonable ground for search or direct the search under Section 50. Sub Section 5 of Section 50 is crucial for the present case which records that if the Officer authorized under Section 42 has reasons to believe that it is not possible to take the person to be search to the nearest Gazetted Officer or Magistrate and there is possibility that the person to be search may part with the possession of any drug or substances, an option is given to the said Officer that instead of taking such person to the nearest Gazetted Officer or Magistrate, he can proceed to search as provided under Section 100 of the Code of Criminal Procedure. Section 50 sub section 6 of the Act further provides that the recording of the reasons to believe under sub section (5) have to be informed to the immediate Official superior within 72 hours.
20. As the case against the accused is based upon the allegation of possession of drugs and substances, it is sine qua non that the prosecution has to establish that the possession was found after conducting the search as prescribed under the Act. In the present case as can be discerned from the fact is that the accused-applicant was given an option of being searched in the presence of Gazetted Officer or Magistrate, the said option was exercised by the applicant and intended that he be searched in the presence of a Gazetted Officer. In the pursuance of the said option exercised by the accused, the Gazetted Officer was summoned. Even as per the counsel for the respondent, as the search was likely to take time, the Gazetted Officer left as the search continued for a sufficient period of time. It is also admitted that the Gazetted Officer, who was summoned did not sign the search memo. In the light of the said admission, coupled with the fact that the charge against the applicant is of illegal possession, it is essential that in the trial court, the foundation of a valid search and consequent discovery of possession is established by the prosecution to carry home the charge. The procedure adopted by the respondents by calling the Gazetted Officer was followed, however, the Gazetted Officer not waiting till the completion of the search and not signing search memo is a clear violation of Section 50 of the Act. Although, Section 50 of the Act in clear terms does not prescribe the signature to be affixed by the Gazetted Officer. On a plain reading of Section 50 read with Section 51 and Section 100 of CrPC, it is an essential that any person, be it any independent person or a Gazetted Officer or a Magistrate before whom the search is carried out necessarily affixes his signature.
21. The foundational fact of 'possession' to be established by the prosecution at the time of trial through a valid search, prima facie is not in consonance with the mandate of Section 50. The allegation of possession prima facie cannot be established without any valid search which is in accordance with the mandate of Section 50.
22. It is essential to note that in the light of judgment of the Hon'ble Supreme Court it is settled that if the search is carried out in person and also goods carried by the accused, the ingredients of Section 50 have to be complied with as is held by the Hon'ble Supreme Court in para 10 in the case of State of Rajasthan vs. Parmanand (supra) where the court also noted the dictum of the constitutional bench in the case of State of Punjab vs. Baldev Singh 1999 Vol.VI SCC page 172 as under:-
"10. The conclusions drawn by the Constitution Bench, which are relevant for this case could be quoted.
"(1) 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 being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.
(2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused.
(3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act."
23. As this Court is prima facie to see that there is a reasonable ground for holding the person to be not guilty, at this stage, in terms of the observation made by the Hon'ble Supreme Court in the case of Baldev Singh (Supra) laid clearly that the recovery of the illicit items becomes suspect as such reasonable grounds exists to form a view that the applicant after trial may not be judged guilty. All the said observations made above are, prima facie, observations to form an opinion which is required to be found at the time of hearing of the bail application and it is clarified that the said observations would in no way affect the trial which shall proceed in accordance with law and after evaluation of evidence.
24. As regards the second condition prescribed under Section 37(1)(b)(ii) that the accused if enlarged on bail, he is not likely to commit any offence while on bail, it is essential to note that the Hon'ble Supreme Court in the case of Ranjitsingh Brahmajeetsing Sharma (supra) had clearly held that while forming a view with regard to future conduct of the accused, the court should consider keeping in view the antecedents of the accused, his propensity and the nature and the manner in which he is alleged to have committed the offence. In the present case, the accused has no criminal antecedents and thus, I have reasons to record satisfaction as is required in the second part of Section 37(1)(b)(ii) of the Act. Although, delayed trial in itself is a ground for grant of bail in the cases under N.D.P.S. Act, the court cannot ignore the fact that after about two years of detention, only one witness has been examined. This view has been recently taken by the Hon'ble Supreme Court in the case of Mohd Muslim @ Hussain (supra) and the order passed by the Hon'be Apex Court in the Case of Rabi Prakash vs. The State of Odisha decided in the Special Leave to Appeal (Crl.) No(s).4169/2023. I am not going to the other arguments raised at the bar with regard to the violation of Circular No.1/88, the factum regarding the conscious possession which is to be analyzed after the evidence. Any finding at this stage may have affect on the outcome of the trial and the same are also not required in view of my findings recorded above pertaining to the violation of condition under Section 50 N.D.P.S. Act. In view of the findings recorded above, the accused- applicant is entitled to be enlarged on bail. Thus, the bail application is allowed.
25. Let the applicant Wahid Ali be released on bail in aforesaid first information report number subject to his furnishing a personal bond and two reliable sureties each of the like amount to the satisfaction of the court below concerned with the following conditions:
(a) The applicant shall execute a bond to undertake to attend the hearings;
(b) The applicant shall not commit any offence similar to the offence of which he is accused or suspected of the commission; and
(c) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
Order Date :- 12.7.2023 Raj