Gujarat High Court
State Of Gujarat vs Shaikh Lala Shaikh Balu on 10 February, 1995
Equivalent citations: (1995)2GLR1709
JUDGMENT K.J. Vaidya, J.
1. "Whether at the pre-trial stage of deciding the bail application for the alleged offence under Section 20(b) of the Narcotic Drugs & Psychotropic Substances Act, 1985, the Court is justified in going into technical questions such as (i) the compliance of the mandatory provisions under Sections 42(2) and 50(1) of the NDPS Act; and (ii) regarding the possession of the house in question from where the muddamal narcotic substance was found out?" These two questions arise for consideration in the context of the facts and circumstances as enumerated hereunder.
2. According to the prosecution, Mr. P.V. Kotwal, PSI, Limbayat Police Station, Surat, on receiving the tip-off that Shaikh Lala Shaikh Balu was illegally storing and selling "Ganja", he immediately requisitioned the services of two panchas and raided his house on 4-8-1993 at 21-30 hours. At that time, the accused was present in the house and on taking search of his house, from one room, white coloured bag was recovered and on opening the same, "Ganja" was found out. On making inquiry about the possession of the said "Ganja", the accused had neither any pass nor permit nor could he render any explanation. Thereafter, on weighing the said muddamal, the same was found to be weighing in all 8.20 kg. This was seized under the Panchnama. On the basis of this allegation, the respondent was arrested and a complaint was filed against him on the very day at Limbayat Police Station for the alleged offences under Section 20(b) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short 'NDPS Act'), which came to be registered as CR-III63 of 1993. Thereafter, it appears that on 28-4-1993, the accused submitted a bail application, the same being Misc. Criminal Application No. 1196 of 1993 in the Sessions Court at Surat. This was allowed by an order dated 3-9-1993 and accordingly, the accused came to be released on bail in the sum of Rs. 7,000/- and a surety of the like amount and upon other terms and conditions as stated in detail in the impugned order, giving rise to the present application for cancellation of bail.
3. The respondent-accused though served, is absent, however, taking into consideration the fact that this is an application for cancellation of bail and that too under the NDPS Act, and further in view of the fact that the accused is unrepresented, Mr. J.M. Panchal, the learned Advocate was requested to assist the Court as amicus curiae which he readily agreed and ably assisted for which this Court is thankful to him.
4. Heard learned A.P.P. Mr. K.T. Dave, and the learned Advocate (Appointed) Mr. J.M. Panchal.
On going through the impugned judgment, it appears that the accused has been released on bail on two grounds, viz., (i) that the PSI who raided the house of the accused failed to company with the mandatory provisions as contained in Sections 42(2) and 50(1) of the NDPS Act; and (ii) that there was no satisfactory evidence on the record to show that the house in question from where muddamal "Ganja" was seized was one in the possession of the accused as the ration card did not incidate the number of the said house.
5. Now, with due respect to the learned Sessions Judge, it appears that she has/committed patent and obvious error while deciding the bail application releasing the accused on bail on the aforesaid two grounds!! It also further appears that the learned Judge has clearly over-looked the basic principle, viz., that while deciding the bail application, at pre-trial stage, the Court is not required to thread-bear analyse the case or appreciate the evidence which is ordinarily done at the end of the full-dressed trial to find out whether there is sufficient evidence for conviction rather, what is to be seen and found out at this stage of bail application is whether there was a prima facie case against the accused or not. In search of what is 'prima facie case' the Court ought to guard itself against possible confusion--as the prima facie case should never be confused with the case proved to the hilt or beyond doubt. Bearing in mind this guiding principles let us appreciate two grounds in question on the basis of which the accused came to be released on bail and find out whether it stands the above test of the prima facie case. Accordingly, first of all, so far as the requirement of Section 42(2) of the Act is concerned, it is indeed quite true that when the officer takes down any information in writing under Sub-section (1) or record grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. Now, whether this has been done or not, is indeed a matter of some detail and therefore, of evidence to be recorded at the time of trial to be tested and proved - where the concerned officer while giving evidence before the Court would depose in the said regard. There is no law which requires that while recording the complaint, in the complaint itself, the officer is bound to state that he has forthwith sent a copy of the same to his immediate superior. Not only that but ultimate idea and the object of filing the complaint is to put the criminal law in motion and in that view of the matter the complaint may not be that encyclopedic containing all and sundry details of the case!! It hardly needs to be stressed the elementary principle that the complaint, panchnama, etc. standing by themselves are not substantive pieces of evidence. They are only the corroborative pieces of evidence and accordingly, in case if there is no mention regarding compliance of Section 42(2) and/or of Section 50 of the NDPS Act, in the complaint that will at the most, be a question to be recorded and decided at the time of the trial when the substantive evidence of the concerned officer is recorded. In this view of the matter, the learned Judge has on face of it has mis-applied Section 42(2) of the NDPS Act at pre-trial stage and therefore, the said ground shall have to be rejected.
6. That takes us to another ground on which the learned Judge released the accused on bail holding that Section 50(1) of the NDPS Act which is mandatory, was not complied with. Now this Section 50 of the Act pertains to the conditions under which search of persons shall be conducted, wherein it is stipulated that 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 him without unnecessary delay to the nearest Gazetted Officer of the Departments mentioned in Section 42 or to the nearest Magistrate. Now if we peruse the Panchnama, it is very clearly stated therein that the Police Officer while taking search, has informed the accused that he was to take search of his house, and therefore, if he wanted to take search of him or the panch-witnesses accompanying him, he was free to do so. Not only that but the accused was also informed that if he was interested in keeping any respectable person of the area or Gazetted Officer or Magistrate present, he can do so. Of course it is quite true that the requirement of Section 50(1) of the Act is not to keep the Gazetted Officer or the learned Magistrate present at the place of the incident. But that appears to be a pardonable bona fide mistake. In substance, the concerned officer has shown bona fide by giving an opportunity to the accused to be searched in presence of the gazetted officer. In this view of the matter, it is indeed unfortunate that the learned Judge has not cared to peruse the police papers and straightway has released the accused on the ground of not complying with the provisions as contained in Section 50(1) of the Act! Apart from the fact that in the present case the Panchnama discloses that the raiding officer has complied with the concerned mandatory provisions of the Act, merely because the raiding officer has not stated so in the contemporaneous record, viz., FIR or Panchnama, that by itself would not be sufficient at the pre-trial/bail stage to conclusively hold that he has not complied with the provisions contained in Section 50(1) of the Act. As a matter of fact, it has been held by this Court (Coram: K.J. Vaidya & B.J. Shethna, JJ) in Criminal Appeal No. 526 of 1988, decided on 23-6-1994, wherein Shethna, J. speaking for the Bench has observed that so far as the procedural aspect of informing the accused is concerned, the same is an official duty and in view of Section 114(e) of the Evidence Act, it should be presumed that he has performed that duty in ordinary course unless of course the said fact is challenged in the cross-examination of the concerned officer and proved to the contrary. In this view of the matter, the learned Judge was once again patently wrong in releasing the accused on bail on the ground that the requirement of Section 50(1) of the Act was not complied with.
7. That takes us to yet one more ground on which the learned Judge granted bail to the accused, viz., there was no evidence regarding the accused being in possession of the house from which the muddamal 'Ganja' was recovered as there was no number in the ration-card. Here also, it appears that the learned Judge has committed a patent error in over-looking the material available in the investigation papers. Taking into consideration the complaint, panchnama, the statements of the neighbours, viz., Babubhai Sakharam Patil and Jogiram Ghanshyam Udiamali, prima facie, it appears that the accused was in possession of the house in question. In this view of the matter, this ground also loses its significance to sustain the order of bail!!
8. As seen above, the learned Judge has not only faultered on the aforesaid elementary grounds, but there appears to be still further clear non-application of mind on her part as she appears to have been totally oblivious to Section 37 of the NDPS Act [inserted by Act 2 of 1989, Section 12 (w.e.f 29-5-1989)] which puts certain embargo upon the powers of the Court while releasing a person accused of offences under NDPS Act on bail. The question also does arise as to what indeed the learned P.P. was doing while opposing the bail application!! While deciding any matter under any particular Act, in order to get the path of appreciation and understanding fully, enlightened for the Court to safely tread, it should always first look at the statement of Objects and Reasons. Once this exercise is undertaken and the light is focussed, then the learned Judge in all probability would not fumble, faulter and wander away as has been done in the instant case! As a matter of fact, the statement of Objects & Reasons of any Act are just like a light-house sending signals to the vessels in the mid-seas so as to direct them in a right direction as not wander away from its destination. Accordingly, while deciding bail applications, interpreting any provisions of the NDSP Act or even finally deciding any cases under the said Act and for that purpose any other Acts, the statement of Objects & Reasons should never be lost sight of. In the instant case, the original provision regarding the bail in Section 37 of NDPS Act, as unamended stood as under:
Old Section 37 - Offences to be cognizable: Notwithstanding any thing contained in the Code of Criminal Procedure, 1973 (2 of 1974) every offence punishable under this Act shall be congnizable.
Now this provision in actual working appears to have been found quite inadequate measure to arrest serious escalation of crimes under the NDPS Act. Therefore, this Section 37 came to be amended by Article 2 of 1989. The statement of Objects and Reasons of Act 2 of 1989 reads as under:
Statement of Objects & Reasons of Act 2 of 1989:
In recent years, India has been facing a problem of transit traffic in illicit drugs. The spill over from traffic has caused problems of abuse and adiction. The Narcotic Drugs & Psychotropic Substances Act, 1985, provides deterrent punishments for drug trafficking offences. Even though the major offences are non-bailable by virtue of the level of punishments, on technical grounds, drugs offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs & Psychotropic Substances Act, 1985, the need to amend the law to further strengthen it, has been felt.
Thus, taking into consideration the wordings of amended Section 37 of the NDPS Act by no stretch of imagination the accused who was found in possession of quite big quantity of 'Ganja' could have been released on the bail. It appears that perhaps the learned Judge was guided by old Section 37 and not by the amended one while committing grave, of course avoidable, error of releasing the accused on bail!!
9. In view of the aforesaid discussion, there is indeed no alternative left with this Court but to cancel the impugned order of bail passed by the Sessions Court. Of course, this Court is quite conscious of the fact that the impugned order came to be passed as long back as on 3-9-1993. It is also further conscious of the fact that the principles governing the bail and cancellation of bail are quite different, and yet at the same time, taking into consideration total mis-application of the relevant provisions of the NDPS Act, as discussed above, and more particularly because of the statutory prohibition contained in Section 37 of NDPS Act, prohibiting grant of bail in cases involving offences punishable with the imprisonment for five years and more where 'Ganja' weighing 8.200 kg. was found, the bail granted earlier is required to be cancelled, with a view to see that clandestinely even the accused does not commit the same or similar offences in future. Not to cancel the bail would be not only risking overall public interest involved but the same would be contrary of Section 37 (amended) of the Act. Accordingly Court is duty bound to step in and cancel the bail.
10. In the result, this Misc. Criminal Application is allowed. The impugned order releasing the accused on bail is hereby quashed and set aside. The accused shall be taken into custody forthwith. Taking into consideration the peculiar facts and circumstances of this case, the Sessions Court is directed to expedite the trial and dispose of the same on or before 31st May, 1995. Direct service permitted.