Allahabad High Court
Mohd. Irshad vs State Of U.P. on 4 June, 2020
Equivalent citations: AIRONLINE 2020 ALL 1175
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved on:28.05.2020 Delivered on: 04.06.2020 Case :- BAIL No. - 7115 of 2019 Applicant :- Mohd. Irshad Opposite Party :- State of U.P. Counsel for Applicant :- Arun Sinha Counsel for Opposite Party :- G.A. Hon'ble Abdul Moin,J.
1. Heard Sri Arun Sinha, learned counsel for the applicant, and Sri Rao Narendra Singh, learned Additional Government Advocate for the State through video conferencing in terms of orders passed by Hon'ble Chief Justice taking into consideration COVID-19 situation.
2. Present bail application has been filed by the applicant Mohd. Irshad, who is involved in Case Crime No.75 of 2019 registered under the provisions of Sections 8 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act of 1985), Police Station Masauli, District Barabanki.
3. From perusal of the first information report dated 24.02.2019 it comes out that on 24.02.2019 the police party noticed two persons moving in suspicious circumstances, who upon seeing the police personnel, tried to run away. The police personnel managed to catch hold of one person namely the applicant while the other person managed to escape. On being arrested, the said person disclosed his name as Mohd. Irshad i.e. the applicant. Upon being asked as to why he tried to run away, the applicant replied that he is carrying morphine in a bag and the person who ran away was his friend/elder brother Mohd. Junaid. The police personnel informed the applicant that he has to be searched by a gazetted officer or a magistrate under the provisions of Section 50 of the Criminal Procedure Code (as indicated in the first information report) to which the applicant informed that as he is carrying morphine, he does not wish to be searched by any other person and that the police personnel may themselves search the applicant. Upon such consent being given by the applicant, the Station Officer searched the applicant and in the bag being carried by the applicant, it was noticed that a polythene was kept. The applicant informed about the contents of the polythene as morphine. The said morphine was weighed in the weighing scale by the police personnel from which it came out that the weight of morphine was one kilogram and ten grams, being brown in colour which was sealed. The applicant was also arrested and the witnesses were said to be the police personnel inasmuch as despite various persons being present none came forward to be a witness on account of not being willing to be involved. The applicant is said to be in jail since 24.02.2019.
4. Sri Arun Sinha, learned counsel for the applicant, on the basis of averments contained in the bail application argued that the provision of Section 50 (1) of the Act of 1985 was not complied with despite a personal search being carried out which is the mandatory requirement and in the absence of the same, the entire arrest and recovery becomes vitiated in the eyes of law and thus the applicant deserves to be released on bail. In this regard, Sri Sinha has placed reliance on the following judgments:-
(i) 2014 (2) SCC (Crl.) 563 - State of Rajasthan vs. Parmanand and another;
(ii) 2019 (1) SCC (Crl.) 371 - S.K. Raju alias Abdul Haque alias Jagga vs. State of West Bengal;
(iii) (2011) 1 SCC (Crl.) 497 - Vijaysinh Chandubha Jadeja vs. State of Gujarat, and
(iv) 1998 SCC (Crl.) 1516 - Namdi Francis Nwazor vs. Union of India and another.
5. Sri Sinha further argued that no sample was drawn from the article being carried by the applicant which was a mandatory requirement and also there were no independent witnesses to the seizure of the morphine and thus the same vitiates the entire arrest and recovery. It is also argued that the applicant does not have any criminal history and thus deserves to be released on bail. No other ground has been argued.
6. On the ground of Section 50 (1) of the Act of 1985 having been violated at the time of arrest, much emphasis has been placed on the judgments of Hon'ble Apex Court in the cases of Parmanand (supra), S.K. Raju (supra) and Vijaysinh Chandubha Jadeja (supra) to contend that even if for the sake of argument the applicant gave his consent for being searched by the police personnel yet the mandatory requirement of Section 50 (1) of the Act of 1985 is that the applicant should have been informed that it is his right to be searched by a gazetted officer or a magistrate and in the absence of police personnel informing the applicant of such right, the arrest and recovery of morphine are vitiated in the eyes of law.
7. On the other hand, Sri Rao Narendra Singh, learned Additional Government Advocate, on the basis of averments contained in the counter affidavit has argued that the applicant was arrested from a public place. The applicant had been given an option of being searched by either a gazetted officer or by a magistrate under the provisions of Section 50 (1) of the Act of 1985 to which he submitted that he wished to be searched by the police party itself and thus there was consent of the applicant for being searched not by a gazetted officer or the magistrate but by the police personnel themselves. It is thus contended that once the applicant was specifically informed about his right under Section 50 (1) of the Act of 1985 and he waived off his right then at this stage the applicant cannot be allowed to argue that the mandatory provisions of Section 50 (1) of the Act of 1985 not having been complied with, the same would vitiate the arrest and recovery of the morphine. In this regard, Sri Rao has placed reliance on the following judgments:-
(i) (2010) 2 SCC (Crl.) 475 - Ajmer Singh vs. State of Haryana;
(ii) 2005 Cri.LJ 1001 - Major Singh vs. State of U.P.;
(iii) 2004 SCC (Crl.) 1571 - State of Haryana vs. Jarnail Singh and others, and
(iv) (2007) 3 SCC (Crl.) 189 - Ravindran alias John vs. Superintendent of Customs
8. Heard learned counsel for the parties and perused the records. From perusal of the first information report, it comes out that the applicant had been arrested and morphine weighing one kilogram and ten grams was also recovered from the bag which the applicant was carrying. The main emphasis by the learned counsel for the applicant is upon not following the provisions of Section 50 (1) of the Act of 1985. For the sake of convenience, Section 50 of the Act of 1985 is reproduced below:-
"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."
9. Section 50 (1) of the Act of 1985 has been considered by a Constitution Bench of the Apex Court in the case of State of Punjab vs. Baldev Singh - (1999) 6 SCC 172. The Apex Court has concluded regarding the provisions of Section 50 (1) of the Act of 1985 as under:-
"(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."
Subsequently, another Constitution Bench of the Apex Court in the case of Vijaysinh Chandubha Jadeja (supra) after considering the judgment of Baldev Singh (supra) has held as under:-
"29. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision."
10. From perusal of two Constitution Bench judgments of the Apex Court, it comes out that the object of the right under Section 50 (1) of the Act of 1985 has been conferred on the suspect by way of a safeguard to check the misuse of power at the hands of the authorities and to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies and thus it has been made mandatory on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a magistrate. Failure to comply with the provisions of Section 50 (1) of the Act of 1985 would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during the search.
11. Being armed with the aforesaid interpretation, as given by two Constitution Benches of the Apex Court, this Court proceeds to consider as to whether provisions of Section 50 (1) of the Act of 1985 were followed in the present case.
12. From perusal of the first information report, it comes out that as the morphine was admitted of being carried by the applicant in a bag, as such, the applicant was informed that in terms of Section 50, he should get himself searched by a gazetted officer or a magistrate to which the applicant consented for having himself searched by the police party itself. This would be apparent from a persual of the following words in the first information report:-
"पकड़े गए व्यक्ति से पूछने पर अपना नाम मोहम्मद इरशाद पुत्र मोहम्मद नसरुद्दीन निवासी चौखंडी थाना सफदरगंज बाराबंकी बताया। भागने का कारण पूछने पर बताया कि साहब मेरे हाथ में जो थैला है इसमें ekjQhuहै। इसी कारण डरकर भागा था मेरे साथ मेरा दोस्त मेरा बड़ा भाई मोहम्मद tquSn पुत्र मोहम्मद नसरुद्दीन भी था जो डर कर भाग गया। पकड़े गए व्यक्ति us बताया कि आप बता रहे हो कि मेरे पास झोले में ekjQhu रखा है तो आपको अपनी तलाशी किसी राजपत्रित अधिकारी या मजिस्ट्रेट के समक्ष अपनी तलाशी चलकर अंतर्गत धारा 50 सीआरपीसी देनी होगी। तो बताया कि साहब जब आप पकड़ ही लिए हैं तो आप ही मेरी तलाशी ले ले मेरे पास ekjQhu है तो ekjQhuही रहेगी। मुझे किसी और के पास तलाशी देकर अपने विरुद्ध और अधिक सबूत एकत्र नहीं करना है।"
Thus, the essential condition of Section 50 (1) of the Act of 1985 of the person being arrested being informed of having a right of being searched by the gazetted officer or magistrate stood satisfied when the police personnel informed the applicant and the applicant waived off his right and allowed the police personnel to search him. Interestingly in the bail application there is no averment by the applicant of the police personnel not having informed the applicant of having the right of being searched by a gazetted officer or a magistrate in terms of Section 50 (1) of the Act of 1985 rather in paragraph 14 of the bail application, it has been contended that there has been non-compliance of mandatory provisions of Section 50 of the Act of 1985 as the applicant was not taken to the nearest gazetted officer for his search nor the gazetted officer was called for by the complainant for search. From perusal of the aforesaid, it thus clearly comes out that the applicant was informed about his right under the provisions of Section 50 (1) of the Act of 1985 though indicated as Cr.P.C in the F.I.R which provided for a search to be made by a gazetted officer or a magistrate which was specifically waived off by the applicant and thereafter the search was conducted by the Station Officer to which also there is no denial in the bail application of such information not having been given to the applicant and consequently the Court is of the view that the mandatory requirement of Section 50 (1) of the Act of 1985 stood satisfied.
13. Another aspect of the matter is that it is admitted that the recovery of drugs was made from the bag which the applicant was carrying and not from his person. The Apex Court in the case of Ravindran alias John (supra) has held that if any drug was recovered from the personal search of the accused, he could take the plea of Section 50 of the Act of 1985 to challenge his personal search. However, where the drug is recovered not from the person of the accused but from a separate bag, then Section 50 (1) of the Act of 1985 shall not be applicable. For the sake of convenience, the relevant observations of the Apex Court in the case of Ravindran alias John (supra) are reproduced below:-
"11. In our view this question does not survive for our consideration because we have earlier held that Section 50 was not attracted to the facts of this case. If any drug was recovered from the personal search of the appellant as explained in Pawan Kumar's case, the appellant could advance this argument to challenge his personal search. That not being the case, the submission must be rejected. An argument was advanced before us that if the search is found to be illegal that is fatal to the case of the prosecution. Apart from the fact that this question does not arise in the instant case, it cannot be said as a general principle of law that the illegality of the seizure would in all cases prove fatal to the case of the prosecution. As held by this Court in 2006 (9) SCALE 644 Ritesh Chakarvarti Versus State of Madhya Pradesh although the effect of the illegal search may not have any direct effect on the prosecution case, it would all the same have a bearing on the appreciation of evidence of the official witnesses and other materials depending on the facts of each case."
However, the aforesaid question may not detain this Court as it has not been disputed by learned Additional Government Advocate that the personal search of the applicant was not carried out and even otherwise, this Court has held that the condition of Section 50 (1) of the Act, 1985 stood complied with.
14. So far as the judgment in the case of Parmanand (supra) is concerned over which strong reliance has been placed by learned counsel for the applicant, the same was a case in which two persons namely Parmanand and Surajmal had been arrested. The Sub-Inspector leading the police party gave a written notice to them informing them about their right under the provisions of Section 50 of the Act of 1985. Upon this, accused Surajmal gave consent in writing in Hindi for himself and for Parmanand and stated that they were ready to get themselves searched by the Sub-Inspector in the presence of Superintendent and he also put his thumb impression and thereafter search was carried out from which opium was found and both Parmanand and Surajmal were charged of the offence under the Act of 1985. Both the accused were convicted by the trial court and upon appeal the High Court acquitted the accused by holding that there was no compliance of Section 50 of the Act of 1985. Upon an appeal being filed by the State, the Apex Court after going through the records, found that the notice given by the police personnel of informing the accused persons of their right under Section 50 of the Act of 1985 had only been signed by one accused namely Surajmal and the same was not signed by accused Parmanand. There was also nothing on record to show that Parmanand had given his independent consent. The Apex Court after considering the Constitution Bench judgment of Baldev Singh (supra) was of the view that once Parmanand was not informed about his right of being searched under Section 50 of the Act of 1985 then merely because the written communication was given to one of the accused who signed on behalf of Parmanand the same would not be considered to be sufficient compliance of Section 50 of the Act of 1985.
15. The aforesaid judgment is clearly distinguishable inasmuch as in the instant case there is no denial in the bail application that the applicant was not informed of having a right of being searched under Section 50 of the Act of 1985 by a gazetted officer or magistrate consequently the judgment of Parmanand (supra) will have no applicability in the facts of the present case.
16. As regards the judgment of Vijaysin Chandubha Jadeja (supra), the same only indicates about the mandatory nature of Section 50 of the Act of 1985 which this Court has already held had been followed in the case of the applicant.
17. As regards the case of S.K. Raju alias Abdul Haque alias Jagga (supra), the same would also not be applicable in the facts of the present case as in the said case the Apex Court held that where the search of the accused person is also carried out then provisions of Section 50 of the Act of 1985 would be attracted and that there had to be compliance of the requirement of Section 50(1) of the Act of 1985.
18. As regards the case of Namdi Francis Nwazor (supra), the same arises out of Section 50 of the Act of 1985 wherein the search of a person and search of the person's luggage has been considered separately. In the instant case, as it was not disputed by the learned Additional Government Advocate that the search of the person of applicant was made consequently the Court has proceeded on the ground that Section 50 of the Act of 1985 was applicable with regard to the search of the applicant including his person and luggage. Thus, the instant judgment would have no applicability in the facts of the present case.
19. As regards the second ground taken by learned counsel for the applicant of no sample being drawn of the drug that was seized, a specific plea has been taken in paragraph 32 of the bail application to the said effect. However, in paragraphs 5 and 30 of the counter affidavit, it has been contended that of the recovered goods, a sample had been taken and had been sent to laboratory which report mentions the seized goods as being heroine. Copy of the said report has been brought on record as Annexure CA-2 to the counter affidavit. Incidentally paragraphs 5 and 30 of the counter affidavit which mentioned about the sample being taken and a report having been taken which reveals the sample as heroine has not been specifically denied in paragraph 5 of the rejoinder affidavit. Further, in paragraph 21 of the rejoinder affidavit wherein para 30 of the counter affidavit has been replied, it is admitted that a sample seal was prepared. Thus, the Court has no option but to hold that a sample had been taken which revealed the seized goods from the applicant as heroine.
20. As regards the ground of there being no independent witness(s) to the arrest and recovery of drugs, learned Additional Government Advocate has placed reliance on the judgment of Apex Court in the case of Ajmer Singh (supra) wherein the Apex Court has held that it cannot be possible to find independent witnesses at all places at all time. The obligation to take public witnesses is not absolute and if after making efforts, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. For the sake of convenience, the relevant observations of the Apex Court in the case of Ajmer Singh (supra) are reproduced below:-
"20. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."
21. From perusal of the judgment in the case of Ajmer Singh (supra) and a perusal of the first information report wherein it has been recorded that despite a few persons of the public having been asked to become witness they all declined, goes to show that efforts were made by the police personnel to find witnesses but they declined and thus lack of independent witnesses, as in this case, in view of this Court and taking into consideration the law laid down by the Apex Court in the case of Ajmer Singh (supra), would not vitiate the arrest and recovery of drugs from the possession of the applicant.
22. As regard the ground taken by learned counsel for the applicant that the applicant has got no criminal history, suffice to state that in cases involving the Act of 1985, prior to grant of bail the Court would have to consider the provisions of Section 37 of the Act of 1985. For the sake of convenience, Section 37 of the Act of 1985 is reproduced below:-
"37. Offences to be cognizable and nonbailable.--(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 [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 subsection (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."
(emphasis supplied)
23. The Apex Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in offences under NDPS Act. In Union of India Vs. Ram Samujh and Ors. 1999(9) SCC 429, it has been elaborated as under: "7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting deathblow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95)] as under:
24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.
8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,
(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and
(ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondentaccused on bail. Instead of attempting to take a holistic view of the harmful socioeconomic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended."
24. 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.
25. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. A similar view has been taken by the Apex Court in the case of State of Karela Vs. Rajesh reported in (2020) SCC Online SC 81.
26. Being armed with Section 37 of the Act of 1985, the law as laid down by the Apex Court in the case of Ram Samujh (supra) and Durand Didier (supra), what this Court finds is that prior to grant of bail under the Act of 1985 the Court should 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. As per the discussions made above, it is apparent that only a technical plea has been raised on behalf of the applicant to somehow or the other make the seizure/recovery of drugs and his arrest suspicious but the Court is satisfied that the applicant is guilty of the offence. In this view of the matter also the Court does not deem the instant case as fit for grant of bail.
27. Taking into consideration the aforesaid discussions, the Court is of the view that there has been compliance of the provisions of Section 50 (1) of the Act of 1985, the sample was duly taken, lack of independent witnesses would not vitiate the recovery and arrest of the applicant and merely because the applicant has no criminal history, would not entitle him automatically for grant of bail.
28. Accordingly, the bail application is rejected. However, it is provided that none of the observations made above would be considered by the trial court in its trial against the applicant and the trial would proceed in accordance with law.
Order Date :- 04.06.2020 A. Katiyar (Abdul Moin, J.)