Orissa High Court
Umakanta Patel vs State Of Orissa on 28 February, 1996
Equivalent citations: 1996CRILJ2686
ORDER B.K. Dash, J.
1. The petitioner, accused of an offence punishable under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the Act") for his allegedly being in possession of Ganja weighing 650 grams, has approached this Court under Section 439, Cr. P. C. for his release, his application having been rejected by the Special Judge, Bhawani-patna.
2. Mr. D. K. Misra, learned counsel for the petitioner perfervidly advanced his argument that there being partial and not full compliance of Section 50 of the Act, the petitioner as of right is entitled to be released on bail. In support of his submission he relied upon certain decisions of this Court, viz., Rabi Sahoo v. State, (1994) 7 Ori CR 460; Fakir Sundari v. State of Orissa, (1995) 8 Ori CR 320; and Narahari Das v. State, (1995) 9 Ori CR 121.
3. It has been authoritatively held by the Hon'ble Supreme Court in State of Punjab v. Balbir Singh, (1994) 6 Ori CR (SC) 283: AIR 1994 SC108 (sic) that Section 50 of the Act is mandatory and non-compliance thereof vitiates the trial. As has been observed, it is imperative on the part of the officer to inform the person to be searched of his right that if he requires to be searched before a Gazetted Officer or a Magistrate. This is a valuable right given to the person to be searched in presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart much more authenticity and credit-worthiness to the proceedings while equally providing important safeguard to the accused. There being no dispute about the legal proposition as has been ruled by the Apex Court as to the consequence of non-observance of the mandate prescribed by Section 50 of the Act, the question arises whether the Court while considering the prayer for bail can look into the relevant records to find if there has been compliance or otherwise of the aforesaid provision.
4. Article 21 of the Constitution lays down that no person shall be deprived of his life or personal liberty except according to procedure established by law. This being the constitutional mandate, the Courts have held that a provision which curtails personal liberty should be strictly construed in favour of the subject and the safeguard providing protection to a citizen's liberty must be liberally interpreted and applied. (See Rameshwar Shaw v. District Magistrate, Burdwan, AIR 1964 SC 334: (1964 (1) Cri LJ 257)). In K. L. Subhayya v. State of Karnataka, AIR 1979 SC 711: (1979 Cri LJ 651) the Hon'ble Supreme Court held that where the valuable safeguards providing for the liberty of the citizen to protect him against the ill-founded or frivolous prosecution or harassment were not complied with, the search was held to be one without jurisdiction and as a logical corollary thereof the conviction held to have been vitiated. The same principle has been reiterated in Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, where the Court observed :
It is far too well-settled to admit of any argument that the procedure prescribed by law for the deprivation of right conferred by Article 21 must be fair, just and reasonable. Just as a mala fide act has no existence in the eye of law, even so unreasonableness vitiates law and procedure alike. It is, therefore, essential that the procedure prescribed by law for depriving a person of his fundamental right must conform to the norms of justice and fair play....
5. Strict compliance of procedural safeguards is intended to protect a person against false and frivolous accusation. Once one is trapped in a case, particularly under the Act, he is incarcerated behind the prison bar for several years and as our experience shows, trial of a case in the present criminal justice system takes couple of years. Therefore, the Court must be vigilant to protect the liberty of a person accused of criminal charge even at the stage of consideration of bail.
6. In Rabi Sahoo, (1994) 7 Ori CR 460 (supra), Fakir Sundari, (1995) 8 Ori CR 320 (supra) and Narahari Das, (1995) 9 Ori CR 421 (supra), it has been observed that non-compliance of the mandatory provision vitiates trial and, therefore, the same can be looked into at the stage of consideration of bail. A batch of bail applications under the Act came to be decided by this Court. (See Jayakrishna Bag v. State of Orissa, (1996) 10 Ori CR 154). It was contended on behalf of the petitioners that because of violation of the mandatory provisions regarding search and seizure, etc. under Sections 42 and 50 of the Act, proceedings are vitiated and, therefore, there is no reason to detain them in custody. Hon'ble D. M. Patnaik, J. dealing with the question posed, observed that in view of the latest decision of the Hon'ble Supreme Court in the case of Union of India v. Thamisharusi; (1995) 9 Ori CR (SC) 1, the afore-mentioned decisions of this Court have been impliedly overruled. Having so observed, he concluded that unless police papers are supplied to the accused, he cannot discharge the burden as provided in Section 37(1)(b) of the Act to show that he is not guilty of the offence with which he stands charged. In view of such observations, it has become necessary to find as to what was the question raised before the Hon'ble Supreme Court in Thamisharusi' and the ultimate conclusion arrived therein.
7. In the aforesaid case, the crux of issue was whether an accused arrested for the commission of an offence under the Act can avail of the benefit of the proviso to sub-section (2) of Section 167, Cr. P. C. if the charge-sheet/ prosecution report is not filed within the period specified therein. Referring to Section 37 of the Act the Court observed that the non obstante clause at the beginning of sub-section (1) of Section 37 indicates that the provisions in clauses (a) and (b) thereof are inconsistent with the corresponding provisions of the Code. Clause (a) makes every offence punishable under the Act to be cognizable. Clause (b) imposes limitations on granting of bail specified therein which are in addition to the limitations under the Code of Criminal Procedure on granting of bail as stated in sub-section (2) of Section 37 of the Act. Two limitations are specified in clause (b), viz. (i) an opportunity to the Public Prosecutor to oppose the bail application, and (ii) satisfaction of the Court 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. So far as clause (b) is concerned, limitations comes in only when the question of granting bail arises on merits. So before passing an order for release of a person accused of an offence under the Act, the Court is to be satisfied that there are reasonable grounds to believe that he is not guilty. This satisfaction can only be had from the available materials collected during investigation. But grant of bail under proviso to sub-section (2) of Section 167, Cr. P. C. is automatic due to default in filing complaint within the maximum period specified therein and not on merits of the case which till filing of the complaint are not before the Court to determine the existence of reasonable grounds for forming the belief about the guilt of the accused. The contention of the learned Additional Solicitor General was that such belief can be formed from the contents of the case diary even prior to filing of the charge-sheet. While not accepting this contention their Lordships observed that the accused cannot discharge the burden placed on him by Section 37(1)(b) of the Act as because he is not supplied with the materials till filing of the charge-sheet. Placing reliance on this observation, Hon'ble single Judge, came to hold that question of non-observance of the mandatory provisions of the Act by the investigating agency cannot be gone into until charge-sheet/prosecution report is filed. On a reading of the whole decision in Thamisharusi, I do not find any such proposition of law to have been laid down by their Lordships of the Hon'ble Supreme Court.
8. Once the liberty of a person is curtailed on accusation of his being involved in an offence, he has a right in every moment to seek for his release on bail. To my mind such right has not been curtailed/ abridged by any statute. So when a person is accused of an offence under the Act, he can approach the Court for bail either during investigation or after filing of the charge-sheet and when such prayer is considered by the Court, he has to discharge the burden that lies on him as per Section 37 of the Act that he is not guilty of the offence.-As has been stated earlier certain provisions including Section 50 of the Act are mandatory and non-observance thereof vitiates the trial. Resort to Sections 42 and 50. of the Act is taken at the initial stage of investigation and compliance thereof can very well be ascertained from the case diary. So in course of hearing of an application for bail if on scrutiny of the diary, it appears that the procedural safeguards have not been followed, the Court can look to the same for the limited purpose of finding whether there are reasonable grounds to believe that the accused is not guilty. This finding of the Court, however, cannot be equated with the one which is recorded at the end of the trial to pronounce judgment. It may well be argued that even though non-observance of the statutory provisions is apparent on the face of the record, yet in course of trial it can supply the omission by leading oral evidence. To my mind, this cannot be accepted and on mere assumption of the probable evidence that may be led by the prosecution, accused cannot be refused bail.
9. In view of my discussions made above, while respectfully agreeing with the views propounded in Rabi Sahoo, (1994) 7 Ori CR 460 (supra), Fakir Sundari, (1995) 8 Ori CR 320 (supra) and Narahari Das (supra), I would hold that due to infraction of the requirements of Section 50 of the Act the accused is entitled to be released on bail.