Orissa High Court
Gulashad vs State Of Odisha ... Opposite Party on 25 April, 2023
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.1703 of 2023
(In the matter of applications under Section 439 of the
Code of Criminal Procedure).
Gulashad .... Petitioner
-versus-
State of Odisha ... Opposite Party
For Petitioner : Mr. S.Manohar, Advocate
For Opposite Party : Mr. P.K.Pattnaik, AGA
CORAM:
JUSTICE G. SATAPATHY
DATE OF ARGUMENT: 12.04.2023
DATE OF JUDGMENT: 25.04.2023
G. Satapathy, J.
1. This is an application U/S. 439 of Cr.P.C. by the Petitioner for grant of bail in connection with Machakund P.S. F.I.R. No. 36 dated 19.04.2021 corresponding to Special T.R. Case No. 40 of 2021 pending in the Court of learned Addl. Sessions Judge- BLAPL No. 1703 of 2023 Page 1 of 27 cum-Special Judge, Koraput for commission of offence punishable U/S. 20(b)(ii)(C) of NDPS Act.
2. The broad allegations as appearing against the petitioner and others are that on 19.04.2021 at 10.30 A.M. the informant Police S.I. and staff while performing vehicle verification at Kangrapada bridge, noticed one white colour Swift Dzire car coming towards Lamtaput side from Machkund side and they, accordingly, stopped the car and detained the four occupants of the said car including the driver. On suspicion, they verified the car and found three numbers of tensil jery bags loaded in the dicky of the car with no registration number plate and out of such jery bags, acute smell of ganja was emitting. On being asked, the four occupants detained by the police disclosed their names as Ajay Pratap Kori, Hari Sankar Singh, Gulashad(petitioner) and Rahul Kumar Verma. After procuring weighman and two independent witnesses as well as successfully BLAPL No. 1703 of 2023 Page 2 of 27 requisitioning the Executive Magistrate-cum- Tahasildar, the informant-police officer gave notice to the above named accused persons in writing U/S. 50 of NDPS Act and weighed the contents of recovered three numbers of jari bags which were found to be flowering and fruiting tops of cannabis plant (Contraband Ganja) in presence of witnesses and Executive Magistrate and it came to 102 Kgs and 400 grams of Contraband Ganja without jery bags. The informant police officer thereupon, accordingly, seized the aforeaid quantity of Contraband Ganja in presence of witnesses. In the course of search of the said Swift Dzire car, one registration certificate bearing No. UP70CX5086 standing in the name of Nishar Ahmad of Pratapgarh(UP) and one pollution certificate were also recovered. On personal search of each of the four occupants, different articles such as mobile phones, Aadhar cards etc. were found and seized. On the aforesaid fact, the S.I. of Police lodged BLAPL No. 1703 of 2023 Page 3 of 27 a FIR before the IIC, Machkund Police Station who registered Machkund Police Station FIR No. 36 dated 19.04.2021 which was investigated into and on completion of investigation, charge sheet was filed against the accused persons including the present petitioner for commission of offence U/S. 20(b)(ii)(C) of NDPS Act.
2.1 On 14.11.2022, the present petitioner unsuccessfully moved an application for grant of bail before the learned Addl. Sessions Judge-cum-Special Judge, Koraput who eventually rejected the bail application of the petitioner after taking note of the allegations and the stipulation as contained in Section 37 of NDPS Act. The petitioner, thereafter, approached this Court in this bail application for his release on bail.
3. In the course of hearing of bail application, Mr.Shyam Manohar, learned counsel for the petitioner appearing virtually has submitted that the petitioner BLAPL No. 1703 of 2023 Page 4 of 27 is neither the owner nor the driver of the car from which Contraband Ganja was recovered and even in the course of investigation, no materials has been collected to prima facie indicate that the petitioner was dealing with the Contraband Ganja either as a seller or purchaser nor was any Contraband Ganja recovered from the personal search of the petitioner and therefore, by no stretch of imagination, conscious possession of Contraband Ganja can be attributed to the petitioner. It is further submitted by Mr. Manohar that the possession of Contraband Ganja would have been attributed to the petitioner, had he been found alone in the vehicle and when the personal search of the petitioner does not lead to seizure of any Contraband Ganja, he thereby can be safely presumed to be innocent occupant of the vehicle. Additionally, learned counsel for the petitioner has also submitted that apparently there was neither any compliance of Section 42 nor of Section 50 of the BLAPL No. 1703 of 2023 Page 5 of 27 NDPS Act and such non-compliance would strike at the very root of the case and therefore, the petitioner is entitled to bail on the very ground of non- compliance of section 42 and 50 of NDPS Act, compliances of which are mandatory in nature. On summing up his argument, learned counsel for the petitioner has prayed to allow the bail application of the petitioner by relying upon the following decisions
(i) Darshan Singh Vrs. State of Haryana; (2016) 14 SCC 358, (ii) Amiri Ali Ligaga Vrs. The State; 1995 SCC Online Delhi 895, (iii) Sanjeev and another Vrs. State of Himachal Pradesh; 2022 Live Law (SC) 267, (iv) SK. Raju @ Abdul Haque @ Jagga Vrs, State of West Bengal; (2018) 9 SCC 708, (v) Rajender Singh Vrs. State of Haryana in Criminal Appeal No. 1051 of 2009 disposed of on 8th August, 2011, (vi) State of Punjab Vrs. Balbir Singh; AIR 1994 SC 1872 and
(vii) Sarija Banu(A) Janarthani and others Vrs. BLAPL No. 1703 of 2023 Page 6 of 27 State through Inspector of Police; (2004) 12 SCC 266.
4. In reply, Mr.P.K.Pattnaik, learned AGA has however, strongly opposed the bail application of the petitioner by contending inter alia that there was adequate compliance of Sections 42 and 50 of the NDPS Act as evident from the materials on record and even if, the prosecution has complied the provisions of Section 42 and 50 of NDPS Act, but since the recovery of Contraband Ganja was from the dicky of the car, there is absolutely no requirement of compliance of Section 50 of NDPS Act which speaks about the compliance for personal search of the person accused of offences under NDPS Act. Learned AGA has submitted by taking this Court through the materials placed on record that the petitioner was found as one of the occupants of the car having no registration number plate, carrying 102 Kgs. of Contraband Ganja which by itself attracts the BLAPL No. 1703 of 2023 Page 7 of 27 stipulation as contained in Section 37 of NDPS Act, but the petitioner having failed to satisfy the Court the twin conditions as enumerated therein, he is not entitled to be released on bail. On the aforesaid submissions, learned AGA has prayed to reject the bail application of the petitioner.
5. After having considered the rival submissions advanced on behalf of the parties, it appears that the petitioner has approached this Court for grant of bail primarily on two grounds. One of such ground is non-compliance of Sections 42 and 50 of the NDPS Act and the other one is for want of prima facie allegations. In addressing the first plank of argument, it appears to the Court that the petitioner claims apparent non-compliance of Sections 42 and 50 of NDPS Act, but learned AGA on the other hand claims sufficient and adequate compliance of the same. In support of his contention for non-compliance of Section 42 by the Investigating BLAPL No. 1703 of 2023 Page 8 of 27 Officer, the learned counsel for the petitioner has taken this Court through the contents of the FIR, but the learned trial Court while rejecting the bail application of the petitioner has indicated in his order that "the S.I. of Police has recovered and seized 102 Kgs. and 400 Grams of Contraband Ganja from the exclusive and conscious possession of the present accused along with co-accused persons after observing all the formalities of search and seizure under NDPS Act." This Court, however, is conscious of the fact that compliance of Section 42 of NDPS Act is not only mandatory, but also a relevant fact, but in view of the rival claims, the moot question crops up for consideration is whether compliance/ adequate compliance or non-compliance of Section 42 of NDPS Act can be ascertained by merely going through the contents of FIR/charge sheet or is it required to be ascertained from the full- fledged evidence led in the course of trial?. In support BLAPL No. 1703 of 2023 Page 9 of 27 of his contention to the effect that non-compliance of aforesaid provision can be ascertained from FIR, Mr.S.Manohar, learned counsel for the petitioner has relied upon number of decisions in (i) Darshan Singh(supra), (ii) Amiri Ali (supra), (iii) Sanjeev(supra) (iv) SK. Raju(supra), (v) Rajender Singh(supra) and (vi) Balbir Singh(supra) but these decisions are rendered after the trial when the compliance or non-compliance of mandatory provision under NDPS Act can be precisely ascertained through the evidence on record. On the other hand, the petitioner has sought to press the non-compliance of mandatory provision of Section 42 of NDPS Act for grant of bail by taking this Court through the contents of FIR, more particularly when trial is yet to commence and evidence thereon is yet to be led in the case at hand. It is, of course, contended by the learned counsel for the petitioner that non-compliance of Section 42 would enure to the BLAPL No. 1703 of 2023 Page 10 of 27 benefit of the accused for grant of bail and in support of such contention, reliance has been placed by him to the decision in Sarija Banu(A) Janarthani and others Vrs. State through Inspector of Police; (2004) 12 SCC 266 wherein a two Judge Bench of the Apex Court in paragraph-7 has held thus:-
"The compliance of Section 42 is mandatory and that is a relevant fact which should have engaged attention of the Court while considering the bail application."
In the prsent case on hand, non-compliance of Section 42 of the NDPS Act has been claimed by the petitioner which is seriously refuted by the learned AGA by submitting that there is adequate compliance of Section 42 of NDPS Act. The petitioner of course has drawn the attention of the Court by taking through the averments made in the FIR, but in the same vigor learned AGA has also drawn the attention of the Court to the relevant portion of the FIR where the informant has stated "as I have reason to believe that delay may be caused in obtaining search warrant BLAPL No. 1703 of 2023 Page 11 of 27 which would facilitate the culprits to escape with contraband Ganja, I thought it proper to detect the Ganja loaded vehicle without obtaining the search warrant and then I intimated the fact to IIC, Machkund P.S., SDPO, Nandapur as my immediate superior and subsequently to S.P. Koraput as per the provision of NDPS Act at 11.15 A.M." Be that as it may, there is no dispute about total non-compliance of Section 42 of NDPS Act is impermissible in the eye of law as held by a Constitution Bench of Apex Court in Karnail Singh Vrs. State of Haryana; (2009) 8 SCC 539 wherein while answering a reference whether compliance of Section 42 is mandatory or not and substantial compliance is sufficient, a five Judges Bench of the Apex Court recorded its conclusion in Paragraph-35 and it is, accordingly, held therein at Paragraph 35 (c) and (d), which are very much relevant for this case, as under:- BLAPL No. 1703 of 2023 Page 12 of 27
"(c) In other words, the compliance with the requirements of Sections 41 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total non-compliance with requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear BLAPL No. 1703 of 2023 Page 13 of 27 violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act.
Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001."
6. In Karnail Singh(supra), the Apex Court in Paragraph-33 and 34 has further held that:-
33. xx xx xx "the relaxation by the legislature is evidently only to uphold the object of the Act. The question of mandatory application of the provision can be answered in the light of the said amendment. The non-compliance of the said provision may not vitiate the trial if it does not cause any prejudice to the accused."
34. xx xx xx "these provisions should not be misused by the wrongdoers/offenders as a major ground for acquittal. Consequently, these provisions should be taken as discretionary measure which should check the misuse of the Act rather than providing an escape to the hardened drug-peddlers."BLAPL No. 1703 of 2023 Page 14 of 27
7. It is, therefore, very clear on a conspectus of the principles laid down by the Apex Court in Karnail Singh (supra) that whether there is adequate or substantial compliance of Section 42 of NDPS Act or not is a question of fact to be decided in each case and such non-compliance may not vitiate the trial, if it does not cause any prejudice to the accused and the provision should be taken as a discretionary measure which should check the misuse of the act, rather than providing an escape to the hardened drug peddlers and therefore, the non- compliance or compliance can be precisely ascertained at the stage of trial when full-fledged evidence is led before the Court and therefore, it would not be possible to ascertain meticulously the compliance or non-compliance of Section 42 at the stage of granting bail particularly in absence of the evidence.
BLAPL No. 1703 of 2023 Page 15 of 27
8. Adverting to the other contention of the petitioner with regard to non-compliance of Section 50 of the NDPS Act, this Court is never in doubt that the Empowered Officer is under obligation of his duty, before conducting the search of the person of a suspect, to inform the suspect either orally or in writing about his right to be searched before a Gazetted Officer or a Magistrate, but failure to give such information would not only vitiate the trial, but render the recovery of illicit article illegal. This Court, however, is of the view that the compliance of Section 50 applies to search of a person, but not for the recovery of contraband articles in a search of premises or conveyance. In this regard, this Court is fortified with the decision of Constitutional Bench of Apex Court in State of Punjab Vrs. Baldev Singh; (1999) 6 SCC 172 which was relied upon by the petitioner and wherein a five Judges Bench of Apex BLAPL No. 1703 of 2023 Page 16 of 27 Court has been pleased to hold at Paragraph-12 as under:-
12. "On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted."
9. Whether compliance of Section 50 is a question of fact or not has been well explained by the Apex Court in Baldev Singh(supra) wherein at Paragraph-33, the Apex court held as under:-
33."The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the Court on the basis of the evidence led at the trial and the finding on that issue, one way or BLAPL No. 1703 of 2023 Page 17 of 27 the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50 and, particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial."
10. In the instant case in support of grant bail to the petitioner for non-compliance of Section 50 of NDPS Act before commencement of trial, learned counsel for the petitioner also relies upon the decision of this Court in Raghu alias Rahul Rajput Thakur Vrs. State of Odisha; 2023 CRI.L.J. 487 for grant bail to the accused therein for non-compliance of Section 50 in matters relating to illegal transportation of 137 Kgs and 300 Grams of Contraband Ganja in a vehicle, but this Court at the cost of repetition once again reiterates the observation of the Apex Court in the decision relied upon by the petitioner in Vijaysingh Chandubha Jadeja Vrs. State of Gujarat; (2011) 1 SCC 609 wherein a BLAPL No. 1703 of 2023 Page 18 of 27 Constitutional Bench of five Judges of our Apex Court has observed in paragraphs-20 and 31 as under:-
20."The mandate of Section 50 is precise and clear viz. if the person intended to be searched expresses to the authorized officer his desire to be taken to the nearest gazetted officer or the Magistrate, he cannot be searched till the gazetted officer or the Magistrate, as the case may be, directs the authorized officer to do so.
31. "The question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf."
11. On analyzing the provision of Section 50 of NDPS Act and following the dictum of the Apex Court in Baldev Singh (supra) and Vijaysingh Chandubha Jadeja(supra) which have definite and clear precedent value, this Court is of the firm view that compliance of Section-50 applies to search of person, but not to apply to search of premises or BLAPL No. 1703 of 2023 Page 19 of 27 conveyance, and the compliance or non-compliance of Section 50 of the NDPS Act is a question of fact and thereby, is a matter of trial and it can be ascertained precisely after complete evidence is led before the Court. In the present case, the narration of allegation reveals that Contraband Ganja was recovered from a Maruti Suzuki Swift Dzire car without having any registration number and the petitioner was one of the occupants of said car, and although a prima facie compliance of Section 50 in the context may not be required for search of the vehicle, but the investigating agency has, of course, made endeavor for compliance of Section 50 of NDPS Act for search of the person of the petitioner, which is to be examined/tested after evidence is tendered in this case.
12. In view of the settled position of law as explained by the Apex Court in Baldev Singh (supra) and Vijaysingh Chandubha BLAPL No. 1703 of 2023 Page 20 of 27 Jadeja(supra), the compliance or non-compliance of Section 50 is a question of fact and can be gone into in the course of trial, but when the trial is yet to commence in this case and evidence is yet to be led, this Court cannot precisely conclude that there is apparently non-compliance of Section 50 of NDPS Act, more particularly when the learned Government Advocate stoutly refutes the contention of the petitioner for non-compliance of Sections 42 and 50 by placing reliance to the averments made in the FIR and copy of notice given U/S. 50 to the petitioner and he, thereby, emphatically submits adequate compliance of Sections 42 and 50 of NDPS Act which can be examined/tested after evidence is led in the case. What emerges from the aforesaid discussions in the present case by following the law laid down by Apex Court in Karnail Singh (supra), Baldev Singh (supra) and Vijaysingh Chandubha Jadeja(supra) is that since the compliance or non- BLAPL No. 1703 of 2023 Page 21 of 27
compliance of Section 42 & 50 of the NDPS Act being questions of facts can be ascertained after full- fledged evidence is tendered in the trial before the Court, but the same cannot be ascertained at this stage when investigation has been completed and the evidence is yet to be tendered. Hence, the submissions made on behalf of petitioner for grant of bail to him owing to non-compliance of Section 42 & 50 of the NDPS Act is not acceptable and merits no consideration at this stage, especially when evidence in this case is yet to be tendered.
13. In this case, the FIR lodged by police officer discloses that the informant and the staff had detected the Maruti Swift Dzire car without any registration number plate and the petitioner and three others were allegedly found as occupants therein with three Jari bags containing 102Kgs and 400 Grams of Contraband Ganja in the dicky of the said car at the time of detection and the informant BLAPL No. 1703 of 2023 Page 22 of 27 police officer, accordingly, seized the Contraband Ganja and later on, one number plate with number UP70CX5086 along with one pollution certificate was allegedly recovered by the informant from the front desk of the car. The FIR also does not disclose any explanation of the petitioner for his presence in the car. What is the most important is that the quantity of Contraband Ganja allegedly seized from the car is coming under commercial quantity and, thereby, the petitioner has to satisfy the Court the mandatory conditions of Section 37 of NDPS Act for grant of bail to him, but on conspectus of the materials placed on record, this Court finds it difficult to record satisfaction at this stage to the effect that the petitioner is not guilty of the offence and he is unlikely to commit offence while on bail, which are mandatory requirements of Sec. 37 of NDPS Act for grant of bail to the petitioner.
BLAPL No. 1703 of 2023 Page 23 of 27
14. While granting bail to the accused for an offence under NDPS Act involving commercial quantity of Contraband articles, it is imperative for the Court to see that when the Public Prosecutor opposes the bail application of the accused, the Court has to be satisfied 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. In this regard, this Court considers it profitable to refer to the case in State of Kerala and others Vrs. Rajesh and another; (2020) 12 SCC 122 wherein the Apex Court has held that:-
"19. The scheme of Sec. 37 reveals that the exercise of power to grant bail if not only subject to the limitation contained U/s. 439 Cr.P.C., but is also subject to the limitation placed by Sec. 37 which commences with non-obstante clause. The operative part of the said Sec. is in the negative form prescribing the enlargement of bail to any person acquit of commission of an offence under the Act, unless twin conditions are satisfied.BLAPL No. 1703 of 2023 Page 24 of 27
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.
"20. The expression "reasonable grounds" means something more that prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable believe contemplated in the provisions requires existence of such facts and circumstance as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Sec. 37 that in addition to the limitations provided under the Cr.P.C. or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.BLAPL No. 1703 of 2023 Page 25 of 27
15. In Narcotics Control Bureau vs Mohit Agarwal ; 2022 SCC Online SC 891 the Apex Court has been pleased to held as under:-
"In our opinion the narrow
parameters of bail available
under Section 37 of the Act, have not been satisfied in the facts of the instant case. At this stage, it is not safe to conclude that the respondent has successfully demonstrated that there are reasonable grounds to believe that he is not guilty of the offence alleged against him, for him to have been admitted to bail. The length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act."
16. In view of the discussions made in the foregoing paragraphs and taking into consideration the allegations leveled against the petitioner and keeping in mind the alleged recovery and seizure of commercial quantity of Contraband Ganja to the tune BLAPL No. 1703 of 2023 Page 26 of 27 of 102Kgs and 400 Grams from the dicky of Maruti car in which the petitioner was found travelling at the relevant time of detection and recovery of Contraband Ganja and the consequent failure of the petitioner to fulfill the mandatory conditions of Section 37 of NDPS Act whereby satisfaction of the Court is sine qua non for grant of bail to the accused for offence under NDPS Act involving commercial quantity and taking into account the materials placed on record in entirety, this Court is unable to persuade itself to grant bail to the petitioner.
Hence, the bail application of the petitioner stands rejected. Trial be expedited, if there is no other legal impediment.
Accordingly the BLAPL stands disposed of.
(G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 25th of April, 2023/Kishore BLAPL No. 1703 of 2023 Page 27 of 27