Patna High Court
Satyendra Sah @ Churabhu Sah vs State Of Bihar on 25 May, 1995
Equivalent citations: 1996(1)BLJR346
JUDGMENT N.K. Sinha, J.
1. Heard Shri A. Amanullah, counsel for the petitioner and counsel appearing for the State.
2. The petitioner claims to be a petty businessman and he is in custody in Kochas P.S. Case No. 93 of 1994 under Section 22,27 and 32 of the Narcotic Drugs and Psychotropic Substances Act, 1985 CNDPS Act for short) The prosecution case in short is that the informant, a Sub-Inspector of Police, received confidential information at 8.15 a.m. on 19-12-1995 that a person was selling herion in front of the shop of one Dubey With a view to verify the truth of the information received, the informant, after making the Station Diary Entry, left for the P.O. along with an Assistant Sub-Inspector and some armed constables. The petitioner was arrested on the spot and he correctly disclosed his identity. Oh search in presence of two witnesses, 20 Purias each containing herion as also a cash of Rs. 125 were recovered from his pocket. A seizure list was prepared which was signed by the witnesses also the petitioner. The case of the petitioner is that he runs a Kirana shop next to the shop of Mr Dubey and the police personnel of local Thana were in the habit of harassing the petitioner for not meeting their illegal demands. It was on account of annoyance caused by the petitioner that the police had falsely implicated him in the case.
3. Mr. Amanullah presses the application for grant of bail mainly on the ground that the mandatory provisions of Section 50 of the NDPS Act which laid down the conditions under which search of persons shall be conducted had not been followed. It was pointed out that the local Sub-Inspector of Police who himself recorded his fardbeyan, did not say a word that the petitioner was given the option of being searched according to the conditions laid down in Section 50 of the NDPS Act. It was, therefore, pointed out that due to violation of the mandatory provisions of Section 50, the petitioner, even assuming that the recovery was made, cannot be fastened with the liability of unlawful possession and this was enough to make out a case that there were reasonable grounds for believing within the meaning of Section 37 of the NDPS Act that the petitioner was not guilty of the offence. Section 50 of the NDPS Act reads:
Conditions under which search 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 persons 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 grounds 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.
In State of Punjab v. Balbir Singh 1994-AIR-SCW-1802 : (1995) 1 BLJR 6 (SC) the Apex Court held that the provisions of Section 50 are mandatory. It was observed therein that on prior information, the empowered officer or authorised officer while acting under Section 41(2) or 42, should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It was laid down that it was obligatory on the part of such officer to inform the person to be searched and failure to inform the person to be searched and if such person so requires, failure to take him to Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. The Apex Court in a recent decision dated 28-9-1994 in Ali Mustafa Abdul Rehman Moosa v. State of Kerala , had quoted with approval the observations made in Balbir Singh's case (supra) which is as follows:
The words" if the person to be searched "so desires" are important. One of the submissions is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that it he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires, since a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer inform the person to be search of his right.
4. The Apex Court further held that the compliance with the provisions of Section 50 of the NDPS Act mandatory and a contraband seized as a result of illegal search or seizure cannot be used to fasten the liability of unlawful possession of the contraband on the person from whom the contraband had allegedly been seized in an illegal manner. The conviction of the accused for various offences under the NDPS Act was, therefore, set-aside for non-compliance with the mandatory provisions of Section 50.
5. The special procedure with regard to the grant of bail in a cognizable and non-bailable offences was the subject-matter of detailed discussion in the judgment of a learned Single Judge of this Court Tribhuwan Kharwar v. State of Bihar, reported in 1994(1) PLJR 501 : (1994) 2 BLJR 946. The provisions of Section 37, NDPS Act as amended in 1989, which provided in Sub-sections (1)(b) that no person accused of an offence punishable for a term of imprisonment for five years or more under this Act, shall be released on bail or on his own bound 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. Section 37(2)' provides that the limitations on granting of bail specified in Clause (b) of Sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force in granting of bail. As observed in Tribhuwan Kharwar case (supra), the Apex Court, in the case of Narcotic Control Bureau v. Krishna Lal and Ors. had already held that the powers of the High Court to grant bail under Section 439, Cr PC, 1973 are subject to the limitations contained in the amended Section 37, NDPS Act and the restrictions placed on the powers of the Court under the said section are applicable to the High Court also in the matter of granting bail in a decision of the Bombay High Court, in Lawrence D'souza v. State of Maharashtra and Anr. 1992 Cr LJ 399, a learned single Judge of the Court held that questions of non-compliance with the provisions of Section 41 to 58 of the NDPS Act, can be looked into even at the stage of bail it was observed therein that it would be fallacious and pernicious to leave the question of their compliance to be looked into only at the stage of trial. It was pointed out that such a situation is fraught with the danger of the prosecution agency ignoring altogether the compliance of the provisions which contain. In built safeguards to the accused, with impunity and with ulterior purpose in a given case. that would bring into peril the liberty of the citizen guaranteed under Article 21 of the Constitution. The accused therefore, should be entitled to rely upon the infirmities with all its rigour even at he stage of bail. The learned single Judge referred with approval the test laid down by the Madhya Pradesh High Court Nari Appas's case 1990 Cr LJ 1990, that the material placed before the court must be judicially considered for reaching the required satisfaction and in doing so, such material which ex facie cannot be legally admitted in evidence, must as of necessity, be excluded from consideration. It is here that the procedural safeguards as provided under the law came into play."
6. In the instant case, the recovery of herion from the possession of the petitioner, prima facie, appears to have been made in contravention of the mandatory provisions of Section 50, NDPS Act. The police officer had received prior information that some-one was selling heroin and had the time to record S.B. Entry before proceeding to the place with police personnel where the petitioner was apprehended and the recovery was made. The contents of the fist information report clearly discloses that the provisions of Section 60 were non-complied with and the petitioner was not informed of his right under Section 50 that if he so requires, he could be taken to the nearest Gazetted Officer or the nearest Magistrate for being searched. The Apex Court has held that the provisions are mandatory and its non-compliance vitiate the trial. The Tribhuwan Kharwar case (supra), the learned single Judge had held the view that irregularities in the matter of search, seizure and arrest, can be taken into consideration at the time of the trial an release of the accused on bail on such technical grounds was not warranted in view to the fact that the offences under the NDPS Act have the potential of serious injury of the society as a whole. With regard to the alleged non-compliance of the provisions of Section 50 of the NDPS Act, the view expressed was that the said question could also be looked into effectively by the trial court itself during trial.
7. In Tribhuwan Kharwar case (supra), the Court had no occasion to consider the decision of the Apex Court in Balbir Singh's case (supra) laying down the law on the subject and which had been referred to with approval by the Supreme Court in AH Mustafa Abdul Rahman Moosa case (supra). In view of the law laid down by the Apex Court, the contraband sized as result of illegal search to search and seizure made in contravention of Section 50 cannot be used as evidence of unlawful possession of contraband. Thus, non-compliance with the mandatory provisions of Section 50, would be sufficient to vitiate a conviction for illegal possession of the contraband and such non-compliance cannot be treated as some technical breach would not affect the conviction. If in course of trial, it was shown that no prejudice had been mandatory provision of Section 50 is Prima facie established, even before the trial of the case is taken up, that would be a reasonable ground for believing that the accused is not guilty of the offence of illegal possession of the contraband and the court on the basis of such a satisfaction would be entitled to release the accused on bail within the meaning of Section 37 provided that the other conditions that the accused was not likely to commit any offence while on bail, was also fulfilled. In my opinion, there is nothing in the provisions of Section 37 that, an accused in custody, must wait until such time that the trail of the case is taken upto satisfy the court that there are reasonable grounds for believing that he is not guilty of such offence provided the necessary materials existed for the court to record such a satisfaction. The Court's satisfaction within the meaning of Section (1)(b)(ii) of the NDPS Act that there are reasonable grounds for believing that the accused is not guilty of such offence, is not recording of a finding that the accused is not guilty within the meaning of Section 248 of the Code of Criminal Procedure. Such a finding of guilty or not guilty, is recorded after the conclusion of the trial whereas the satisfaction that there are reasonable grounds for believing that the accused is not guilty, has of necessity t6 be arrived at before the conclusion of the trial, that is, at any stage of investigation or in course of trial itself. In my opinion, there is nothing in the provision of Section 37 that the Court's satisfaction that there are reasonable grounds for believing that the accused is not guilty, must be arrived at only in course of the trial and not before the trial, in courts of investigation or thereafter, even before the trial is taken up. In the circumstances, the court cannot shirk its responsibility by postponing the consideration of the fact whether reasonable grounds exist for believing that the accused is not guilty till the stage of actual trial, any view of the matter, if materials are shown to exist on the basis of which the court can feel satisfied that there are reasonable grounds for believing that the accused is not guilty, the Court cannot take recourse to any alternative other than recording its necessary satisfaction. For these reasons, I express my respectful disagreement with the Mews expressed by the learned brother in Tribhwan Kharwar case (supra).
8. The Court granting bail under Section 37(1)(b)(ii), has also to record a satisfaction that the accused was not likely to commit any offence while on bail.
In Tribhuwan Kharwar case (supra), the Court had expressed its considered opinion that even assuming that it was possible for the court to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence, the satisfaction of the court that if the accused is released on bail, he is not likely to commit any offence, cannot be arrived at by a court of law while considering a bail application. If such a satisfaction cannot be arrived at while hearing a bail application, there will be no occasion to record any satisfaction after the end of the trial. If the accused at the end of the trial is found not guilty, he would be acquitted of the charge. If found guilty, he would not be entitled to bail as reasonable grounds existed because of the finding that he was guilty and there could be no case arriving at a satisfaction that reasonable grounds exists for believing that he is not guilty.
9. The provision that accused will not be released on bail unless the court was satisfied that he was not likely to commit any offence while on bail, is not a novelty introduced for the first time under NDPS Act. The language of Sub-sections (8) and (9) of Section 20 of the TADA is analogous to Section 37 of the NDPS Act and it also provides that no person accused of an offence punishable under the Act, shall be released on bail unless 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. Even Rule 184 of the Defence and Internal Security of India Rules, 1971 had a provision analogous to Section 37 of the NDPS Act that the bail could not be granted unless the court was satisfied that there were reasonable ground for believing that he is not guilty of such contravention. learned Counsel appearing for the State has not referred to any decision of the Apex Court that Court's satisfaction that there are reasonable grounds for believing that the accused is not guilty, can be recorded only in course of the trial and not before that. Likewise, no decision of the Apex Court has been cited as an authority for the proposition that the satisfaction that the accused, if released on bail, was not likely to commit any offence while on bail, can be arrived at only at or in course of the trial by the trial court and not be a court competent to hear the application for bail. If such constructions were to be given to the provisions of Section 37 of the NDPS Act, no accused would be released on bail until such time that the trial court took up the trial and adduced evidence enough the court was satisfied as to the existence of reasonable grounds for believing that the accused is not guilty of such offence. Clause (b) of Sub-section (1) of Section 37 opines with the words, no person accused of an offence punishable for a term of imprisonment for five years or more under this Act, shall be released on bail A person becomes an accused of an offence long before his actual trial commences and the legislative intent is clear that the provision for bail under Section 37, is intended to cover persons accused of an offence punishable under the Act for a certain term of imprisonment or more. The Court's satisfaction that the accused, if released on bail, is not likely to commit any offence, can be arrived at for reasons which may vary from case to case. For arriving at such a satisfaction, it may be necessary in certain cases to consider the criminal antecedents of the accused. It is possible that in certain cases, where there are reasonable grounds for believing that the accused is not guilty, materials may exists to indicate that the petitioner either belongs to or has close connection with some gang, the members of which are in the habit of committing offences under the NDPS Act and in such a situation, the court may refuse to record a satisfaction that, if released on bail, the accused is not likely to commit any offence. It is not necessary to enumerate the various circumstances in which such a satisfaction of the court hearing the bail application may or may not be recorded in favour of the accused. However, the difficulty, if any, in recording such a satisfaction, is not a sufficient ground for a court hearing bail application to postpone its consideration until such time that the trial court took up the trial of the case which on the basis of the materials produced in course of trial, was in a better position to record such a satisfaction compared to the court hearing bail application. Thus, I am in respectful disagreement with the views expressed in Tribhuwan Kharwar case (supra) that the aforesaid satisfaction that the accused, if released on bail, was not likely to commit any offence while on bail, cannot be arrived at by a court of law while considering a bail application.
10. In the instant case, the petitioner is a petty businessman. There is no material on the record to suggest his association with the persons who have the reputation of indulging an activity which constitutes offence under the NDPS Act. There is nothing to suggest that prior to his arrest in the case in question, he had been ever suspended or made an accused for committing any offence under the Act. Since the recovery was made in contravention of mandatory provisions of Section 50, the petitioner cannot be, prima facie, held responsible for unlawful possession of the heroin and in such a case, this Court has no hesitation in recording the satisfaction that there are reasonable grounds for believing that the petitioner is not guilty of such offence and that he is not likely to commit any offence while on bail.
11. The application for bail is accordingly allowed and the petitioner, Satyendra Sah alias Churabhu Sah is directed to be released on his furnishing bail bond of Rs. 10,000 (ten thousand) with two sureties of the like amount each to the satisfaction of the Sessions Judge, Rohtas, Sasaram in Kochas P.S. Case No. 93 of 1994.