Gujarat High Court
Shirish Madhavdas Parikh vs State Of Gujarat on 9 February, 1990
Equivalent citations: (1990)1GLR617
JUDGMENT B.S. Kapadia, J.
1. The present petition is filed under Section 439 of the Criminal Procedure Code for bail.
2. Short facts are that on 5-4-1989 when the present petitioner was on the Platform No. 2 of vapi Railway Station, he was arrested on suspicion by Valsad Railway Police. The informant had suspected the petitioner and had asked certain questions, which were not replied by the petitioner properly and therefore, the informant checked the bag of the petitioner from which very strong smell was coming out and he found Brown Sugar in that bag. It appears that subsequently the petitioner was brought to Valsad Railway Police Station and produced before the Head Constable Ramchandra Ragho where the panchas were called and the search of the petitioner was taken in the presence of panchas. It appears that near about 1 Kg. Heroin was found and the contraband was sealed and seized after 50 grams was taken one for sample and seized as per the panchnama. Thereafter the samples of contraband articles were sent to the Chemical Analyser. It appears from the report of the Chemical Analyser that the contents of exhibit A & B are found to be Morphine, Diacetyl Morphine (Heroin) papavani. Narcotine & Methagyalone. Along with it, there was one covering letter wherein it was stated that the packets marked as A & B were with intact seals and one small piece of paper with a case number and the names of Vajirbhai Amirbhai and Jitendra Harishankar Thakur were also mentioned in the said chit.
3. Mr. David, learned Advocate appearing for the petitioner, has raised numerous points before me. The first point is with regard to Chemical Analyser's report and he submits that it is not the same muddamal, which was alleged to have been recovered from the petitioner and sent it to Chemical Analyser. He places reliance on the small aspects of the matter, which is mentioned in the panchnama, while in the report of the Chemical Analyser, nothing is mentioned with regard to smell. In that view of matter, according to him, some different substance was sent to the Chemical Analyser. It is pertinent to note that there is no substance in this contention because muddamal was seized in the presence of panchas and samples were taken and were sealed in two packets, which were marked as A & B and they were sent to Chemical Analyser. They were received by the Chemical Analyser's Office with seals in tact. In that view of the matter, at this stage, this contention cannot be accepted. It is a matter of trial.
4. The second point, which is raised before me, is that the investigation is carried on by a Head Constable and as it was seized from the public place, Section 43 would apply and, therefore, Head Constable has no authority. What is mentioned in the opening of Section 43 of Narcotic Drugs & Psychotropic Substances Act, 1985 is "any officer of any of the Departments mentioned in Section 42 may" discharge the duties mentioned in Section 43. Now, when there is a mention of Section 42 in Section 43, it is very clear that the Legislative has employed the shorthand, instead of reproducing what is stated in Section 42 and, therefore, those officers who are authorised for the purpose of search and seizure under Section 42 would also be entitled to search and seize the goods in a public place as mentioned in Section 43.
5. It is also contended before me that Head Constable cannot be said to be Police Officer and he relies on the judgment of the Rajasthan High Court in the case of State v. Jagmolaram 1989 Crimes Vol. I 314. What the learned Judge has observed is that Section 43 also exclude Police Constable and Head Constable being a Constable, he cannot be said to be an officer. This judgment cannot be relied upon because the Police Officers are defined in Section 2(11) of the Bombay Police Act, wherein it is defined that 'Police Officer' means any member of the Police Force appointed or deemed to be appointed under the said Act. When that is so, Police Constable or Head Constable is a member of the Police Force and, therefore, Head Constable is a Police Officer. Anyway, under Section 42 Constable cannot be empowered and, therefore, Head Constable can be empowered because he is a member of the Police Force and he is a Police Officer. Here, in this case, he has referred to the notification issued by the State of Gujarat for the purpose of power of entry, search, seizure and arrest without warrant delegated to certain officers and that speaks in respect of all officers of and above the rank of Head Constable in the State of Gujarat. It means that the Head Constable is also authorised for the purpose of Section 42(1). When that is so, there is no doubt whatsoever in holding that Head Constable is also entitled to search and seize the goods from the public place under Section 42 of the Act.
6. The next contention is with regard to the non-observance of the provisions of Section 50 inasmuch as no opportunity was given to him for taking the person to the nearest Gazetted Officer as mentioned in Section 42 or to the nearest Magistrate. Section 50 employs the words "if such person so requires". Here, nothing is pointed out as to whether the present petitioner asked the Police Officer to take him to the nearest Magistrate. Therefore, prima facie this contention cannot be of any avail to the petitioner for the purpose of bail. However, he will be at liberty to raise this point at the time of trial, particularly in view of the judgment in the case of State of Himachal Pradesh v. Sudarshan 1989 Cri. LJ 1412, wherein it is held that it is the duty of the Police to enquire from the accused as to whether he wants to go to the nearest Magistrate. The said ruling cannot be of any avail for dislodging the prima facie case against him because the said ruling is given in the matter in which a conviction was set aside and not in the bail application.
7. The next contention is with regard to the production of the petitioner before the Magistrate and/or Sessions Judge. It may be stated that it has also connection with the trial and ultimately if the trial Court holds that there is some illegality, the Court may not convict the petitioner, but when the question of prima facie case is to be decided, this irregularity on the point of investigation or producing before the Sessions Judge would not be of any avail. It may be mentioned that at one point of time, Mr. David submitted that instead of producing before the Special Judge, he was produced before the Sessions Court. It may be mentioned that the said contentions on behalf of the petitioner will be required to be examined from the point of view of Section 36(d) and also Section 74 of the Act and, therefore, at this juncture, it cannot be said that the prosecution has failed to establish a prima facie case.
8. The last point, which is raised by Mr. David, is with regard to not submitting the F.I.R. to the Magistrate immediately as required under Section 157 of the Criminal Procedure Code and in support of his contention, he has relied on the judgment in the case of Ishwar Singh v. State of U.P. It may be mentioned that in the instant case, the effect of non-compliance is mentioned. It was held in that case that non-compliance would affect to the extent that eye witnesses' deposition cannot be taken at face value. However, in this case, in the affidavit-in-reply it is also pointed out on behalf of the respondent that in the Javak Register, Entry 1155 was made in respect of despatching the F.I.R. to the learned Magistrate. Under the circumstances, I do not find any substance on this point also.
9. It may be mentioned that the Legislature has also made very strict provisions for the purpose of releasing such an accused on bail by specially enacting Section 37(1)(b), which says that no person accused of an offence punishable for a term of imprisonment of five years or more under the Act shall be released on bail or on his own bond, unless 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 such offence while on bail. Looking to the facts and circumstances of the case, it is the other way round. There is a strong prima facie case against the petitioner in view of the panchnama of seized contraband Heroin, report of the Chemical Analyser and the big quantity of Heroin of about 1 Kg. valued at Rs. 1 lac. Looking to the large quantity and its high value, the possibility of its planting by the Police is totally ruled out. Therefore, there is no ground, much less reasonable ground, for believing that petitioner is not guilty of such offence and that petitioner is not likely to commit any offence while on bail. The possibility of the petitioner's engaging in the same business of dealing in Narcotic Drugs and Psychotropic Substances cannot be ruled out.
10. It may be mentioned that now-a-days, the activities with regard to offence of dealing in narcotic drugs and psychotropic substances are on increase and that is an anti-national activity. With a view to save the youths of our country from the evil of this activity, it is necessary to deal with these national enemies very strictly. If they are set free, they are likely to indulge in the same activities again and they will do enormous harm to the national youths. Under these circumstances, I do not find any substance in the matter and, therefore, this application is dismissed. Rule is discharged accordingly.