Allahabad High Court
Nathooni Singh And Etc. vs State Of U.P. on 18 March, 1993
Equivalent citations: 1994CRILJ3
ORDER S.K. Verma, J.
1. All these bail applications relate to offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act for short) and are being disposed of by this common order because similar questions of law have been raised in these cases.
2. The main submission made on behalf of the learned Counsel for the applicants in these cases is that in view of the decision of this Court in Sewa Ram v. State of U.P., 1992 Cri LJ 2929 : (1992 All LJ 942) and also in view of decision of this Court in Criminal Misc. Bail Appln. No. 14479 of 1992 (Dadan Singh v. State of U.P.) the legal position is as follows:
(a) The provisions of Sections 42 and 50 of the NDPS Act are mandatory and violation of any of these provisions will raise a presumption of prejudice.
(b) The prosecution may show with reference to the appropriate evidence at the stage of bail and in the trial that compliance of these provisions was, in fact, made.
(c) The prosecution could also place before the Court reliable evidence to show that irrespective of the violation of these provisions, recovery was made from the accused and no prejudice has, in fact, been caused.
(d) In regard to Section 50 of the NDPS Act, the police officer is bound to inform the accused that he could have his search made before a Magistrate or any other Gazetted Officer referred to in this section.
(e) Where provisions of Section 42 or 50 of the NDPS Act have been violated and it is not shown that no prejudice was, in fact, caused, mere alleged recovery of large quantity may not be considered to be sufficient to deny bail.
3. It has further been argued that it was also up-held in Dadan Singh's case on the basis of Dasrath Lal v. State of U.P. (1992) 2 EFR 486 (2) that where the mandatory provisions are complied with, then only the provisions of Section 37 of the NDPS Act will come into play.
4. From the prosecution side reliance has been placed on the decision of the Supreme Court in Narcotic Control Bureau v. Kisanlal (1991)1 SCC 705: (1991 CriLJ 654) and it has been argued that Section 37 as amended, starts with a non obstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied. The NDPS Act is a special enactment and as already noted it was enacted with a view to make stringent provisions for the control and regulation of operations relating to Narcotic Drugs and Psychotropic Substances. That being the underlying object and particularly when the provisions of Section 37 are in negative terms, limiting the scope of applicability of the provisions of Cr.P.C. regarding bail, it cannot be held that the High Courts powers to grant bail under Section 439, Cr.P.C. are not subject to the limitation mentioned under Section 37 of the NDPS Act. The non obstante clause with which the section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. In case of inconsistency between Section 439, Cr.P.C. and Section 37 of NDPS Act, Section 37 prevails.
5. With due respect to the learned Judges of this Court deciding Dadan Singh's case (supra), Sewa Ram's case (1992 Cri LJ 2929) (supra) and Dasarath Lal's case (supra), it may be stated that in those decisions the Supreme Court decision in Narcotic Control Bureau v. Kisanlal (1991 Cri LJ 654) was not noticed. The decision of the Supreme Court is binding on all Courts under Article 141 of the Constitution of India. Hence it is evident that the provisions of Section 37 of the NDPS Act which are intended to restrict the powers to grant bail have to be taken into account in spite of the fact that the procedure followed during search and seizure was illegal and provisions of Sections 42 and 50 of NDPS Act were not complied with.
6. It is noteworthy that Section 37 of the NDPS Act makes no exception, hence even if the procedure prescribed under Sections 42 and 50 of NDPS Act has not been followed, while considering bail, the provisions of Section 37 of the NDPS Act have to be borne in mind. In this respect it will be pertinent to refer to a decision of the Supreme Court in Pooran Mal v. Director of Inspection (Investigation) of Income-tax, New Delhi reported in AIR 1974 SC 348. In that case the Hon'ble Supreme Court after noticing the provisions of the Constitution of India and the law of evidence and various American and English judgments concluded that the evidence collected on the basis of the illegal search and seizure cannot be shut out from being considered by the courts against the person from whose custody the evidence was collected. The Hon'ble Supreme Court observed as under (at pp. 362-63 of AIR):
In other words, search and seizure for the purposes of preventing or detecting crime reasonably enforced was not inconsistent with the constitutional guarantee against search and seizure. It was held in that case that the search of the appellant by a Police Officer was not justified by the warrant nor was it open to the Officer to search the person of the appellant without taking him before a Justice of the Peace. Nevertheless it was held that the Court had a discretion to admit the evidence obtained as a result of the illegal search and the constitutional protection against search of person or property without consent did not take away the discretion of the Court. Following (1955) AC 197 the Court held that it was open to the court not to admit the evidence against the accused if the Court was of the view that the evidence had been obtained by conduct of which the prosecution ought not to take advantage. But that was not a rule of evidence but a rule of prudence and fair play. It would thus be seen that in India, as in England, where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out.
7. The Hon'ble Supreme Court has expressed similar view in the case of State of Maharashtra v. Natwarlal Damodar Das Soni reported in AIR 1980 SC 593 : (1980 Cri LJ 429) in which the decision of the Hon'ble Supreme Court in Radha Kishan v. State of U.P. reported in AIR 1963 SC 822 : (1963 (1) Cri LJ 809), Shyamlal v. State of Madhya Pradesh reported in AIR 1972 SC 886 : (1972 Cri LJ 638) and State of Kerala v. Alasserry Mohammad reported in AIR 1978 SC 933 : (1978 Cri LJ 925) were also noticed along with certain American decisions. Similarly, the Hon'ble Supreme Court in the case of Dr. Pratap Singh v. Director of Enforcement, Foreign Exchange Regulation Act reported in AIR 1985 SC 989 : (1986 Cri LJ 824) after placing reliance on the view taken by the Constitution Bench in Pooran Mal's case (AIR 1974 SC 348) (supra) concluded that:
Assuming that it is obligatory upon the officer proceeding to take search or directing a search to record in writing the grounds of his belief and also to specify in such writing, so far as possible, the thing for which the search is to be made, is mandatory and that non-recording of his reasons would result in the search being condemned as illegal, what consequence it would have on the seizure of the documents during such illegal search. The view taken by a learned single Judge of the Calcutta High Court in New Central Jute Mills Co. Ltd. case, AIR 1976 Cal 178, that once the authorisation for carrying out the search is found to be illegal on account of the absence of recording of reasons in the formation of a reasonable belief, the officer who has seized documents during such search, must return the documents seized as a result of the illegal search is against the weight of judicial opinion on the subject and does not commend to us. In fact, this decision should not detain us at all because virtually for all practical purposes it can be said to have been over-ruled by the decision of the Constitution Bench in Pooran Mal v. Director of Inspection (Investigation) of Income-tax, Mayur Bhawan, New Delhi, (1974) 2 SCR 704 : AIR 1974 SC 348. This Court held that courts in India and even in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure. If, therefore, the view of the learned single Judge of the Calcutta High Court were to be accepted meaning thereby that if the search is shown to be illegal, anything seized during such illegal search will have to be returned to the person from whose premises the same was seized, it would tantamount to saying that evidence collected during illegal search must be excluded on that ground alone. This was in terms negatived by the Constitution Bench. It has been often held that the legality in the method, manner or initiation of a search does not necessarily mean that any thing seized during the search has to be returned. After all in the course of a search, things or documents are required to be seized and such things and documents when seized may furnish evidence. Illegality of the search does not vitiate the evidence collected during such illegal search. The only requirement is that the court or the authority before which such material or evidence seized during the search shown to he illegal is placed has to be cautious and circumspect in dealing with such evidence or material. This is too well established to necessitate its substantiation by a precedent. However, one can profitably refer to Radha-kishan v. State of U.P. (1963) Supp 1 SCR 408 at p. 411 : AIR 1963 SC 822 at p. 824 : (1963 (1) Cri LJ 809 at p. 811), wherein the court held that assuming that the search was illegal the seizure of the articles is not vitiated. It may be that because of the illegality of the search the court may be inclined to examine carefully the evidence regarding seizure, but no other consequence ensues. State of Maharashtra v. Natwarlal Damodardas Soni (1980) 4 SCC 669 : AIR 1980 SC 593 : (1980 Cri LJ 429).
8. Hence if no other consequence ensues the consequence of presumption of prejudice can also not ensue. It would, thus, be seen that in every case where the provisions of Sections 42 and 50 of NDPSAct have not been followed, there will not be an automatic presumption of prejudice, and each case has to be assessed on its own facts for the merit of the recovery or the evidence collected against the accused. It is true that it is open to the Court not to admit the evidence against the accused if the Court is of the view that the evidence has been obtained by a conduct of which the prosecution ought not to take advantage but that is not a rule of evidence but a rule of prudence and fair play.
9. It, therefore, follows that whenever it is prima facie found that provisions of Sections 42 and 50 of the NDPS Act have not been complied, the Court has still to prima facie evaluate the evidence collected against the accused and has to consider the restrictions imposed on the Court under Section 37 of the NDPS Act. If after prima facie considering the value of evidence of search and seizure the Court comes to a prima facie opinion 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, the bail can still be granted. The restrictions contained in Section 37 of the NDPS Act have to be kept in mind even where the provisions of search and seizure contained in NDPS Act have, prima facie, not been complied.
10. Even in Dadan Singh's case (supra) after considering decisions of several High Courts the dicta of Pooran Mal's case (AIR 1974 SC 348) (supra) and Pratap Singh's case (1986 Cri LJ 824) (SC) (supra) have been followed. It is, therefore, unnecessary to consider all those decisions which have already been considered in Dadan Singh's case (supra).
11. In view of the reasons stated above, the legal position based on a consideration of the decisions in Narcotic Control Bureau v. Kisanlal (1991 Cri LJ 654 (SC) (supra) and Pooran Mal v. Director of Investigation (AIR 1974 SC 348 (supra) is that even where the provisions of search and seizure mentioned in Sections 42 and 50 of NDPS Act and other relevant provisions have not been followed, the provisions of Section 37 of the NDPS Act would apply and the Court considering bail will have to take into account restrictions on the powers to grant bail in spite of the procedure having been followed during search and seizure being illegal. It is not required to refer the matter to a larger Bench because in the circumstances enumerated above, the law laid down by the apex Court has to be followed.
12. The individual cases may now be considered : In Nathooni Singh's case crime No. 160 of 1992 under Sections 8/20 NDPS Act along with Pappoo Dube's case crime No. 161 of 1992 under Sections 8/20 NDPS Act, Sagar's case crime No. 158 of 1992 under Sections 8/20 NDPS Act and Chhotey Lal's case crime No. 159 of 1992 under Sections 8/20 NDPS Act; all relating to Police Station Nebua Naurangiya district Deoria, the four applicants were arrested at one place and on their search 5 Kg. Ganja from Nathooni Singh, 7 Kg. Ganja from Sagar, 7 Kg. Ganja from Chhoteylal and 5 Kg. from Pappoo Dubey were recovered. All of these applicants are from Bihar Province. They claimed to be rikshaw pullers and alleged false implication because of quarrel with policemen of the aforesaid Police Station. It is true that prima facie provisions of Section 50 NDPS Act have not been followed but looking to the attending circumstances and the quantity of the Ganja recovered, it cannot be said at this stage that the applicants are not guilty. Their bail applications are, therefore, liable to be rejected.
13. Applicant Virendra Singh in case crime No. 130 of 1991 Police Station Gahmar district Ghazipur under Sections 8/20 NDPS Act has peculiar facts. The Circle officer of Jamania Circle after coming to know that the Station Officer of Police Station Gahmar has kept an Ambassador car for the last three days and the Dicky of the Car contains 50 Kg. illicit Ganja, went to Police Station Gahmar and recovered the illicit Ganja from the Car and during the recovery the Station Officer allegedly caused hindrance in the process of search and seizure. Prima facie the owner of the car, namely, the applicant could hardly be fastened with the liability of carrying Ganja in the car when the car remained standing at the Police Station for three days prior to recovery. Hence it is a fit case for bail.
14. In the case of Ishwar Din, case crime No. 394 of 1992 under Section 20 of the NDPS Act Police Station Soraon district Allahabad, 10 Kg. Ganja and a small balance along with the weights of 20 Kg., 50 Kg. and 100 Kg. denomination were recovered. The applicant claims false implication due to previous enmity with the police. The facts disclose recovery of material which cannot be prima facie explained by the applicant. It is not a fit case for bail.
15. In the case of Smt. Phoolmati Devi, case crime No. 414 of 1992 under Section 20 of the NDPS Act Police Station Moghal Sarai district Varanasi, there was recovery of one Kg. Ganja and it was argued that in spite of previous information the search was not made through a female as required by Section 50(4) of the NDPS Act. It was also argued that compliance of Sections 42 and 50 of the NDPS Act has not been made considering the facts and circumstances it appears to be a fit case for bail.
16. In the case of Murari, case crime No. 17 of 1993 under Section 27/18 of the NDPS Act Police Station Kotwali Nagar district Bulandshahr recovery of 15 grams Charas was made along with similar recovery from two other co-accused, namely Bulla and Somwati It was argued that although the police witnesses were taken from police outpost, no lady constable was taken for search in compliance of Section 50(4) of the NDPS Act. It was also argued that no public witness has been taken. After perusal of the first information report I find it a fit case for bail.
17. In the case of Krishna Kumar, case crime No. 5 of 1993 under Section 8/18 of the NDPS Act Police Station C.B. Ganj district Bareilly, there was recovery of 400 grams of opium from the possession of the applicant on 5-1-1993 at 3-35 a.m. from G.T. road. The first information report was lodged at 4-45 a.m. the same morning. After perusal of the facts the recovery cannot be said to be prima-facie unreliable, hence there is no ground for reasonable belief that the applicant is not guilty. The application deserves to be rejected.
18. The bail applications of Nathooni Singh, Pappoo Dubey, Sagar, Chhoteylal, Ishwar Din and Krishna Kumar are rejected. The bail applications of Virendra Singh, Smt. Phoolmati Devi and Murari are allowed. These applicants shall be released on bail on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Chief Judicial Magistrate concerned.