Allahabad High Court
Ram Kailash Jaiswal vs State Of U.P. on 18 October, 2000
Equivalent citations: 2001CRILJ674
Author: B.K. Rathi
Bench: B.K. Rathi
ORDER B.K. RATHI, J.
1. The applicant has made a request for bail for offence under Section 18/20 N.D.P.S. Act in crime No. 184 of 2000, police station Kotwali, district Allahabad.
2. I have heard Sri V.P. Srivastava, learned counsel for the applicant and the learned A.G.A.
3. According to the case of the prosecution on 17-8-2000 the Eicher Truck No. UP-40-A/5949 was searched and 10Kg. of ganja and 30 Kg. of bhang were recovered. Regarding the bhang it has been alleged that the applicant was agent of the contractor of bhang, Sri Vinay Nath Tripathi and was transporting the same in accordance with his instructions. Regarding the ganja it is contended that there is no compliance of the provisions of Section 50 of N.D.P.S. Act in so far as the applicant was not given the opinion of being searched before the Magistrate or Gazetted Officer. It is argued that therefore, the applicant is entitled to bail.
4. I have gone through the recovery memo. For the purposes of disposal of this bail application, I presumed without examining this fact thoroughly that there is no compliance of Section 50 of N.D.P.S. Act. However, Section 50 applied to the search of the person. It does not apply to the search of premises. The relevant Clause (1) of Section 50 of N.D.P.S. Act is as follows:
Section 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 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.
5. A bare reading of the section shows that it applied to the search of the person and not to the search of premises or vehicle.
6. The learned counsel in support of his argument regarding applicability of Section 50 of the Act has referred to the several cases. The first case is Two Judges judgment in State of Himachal Pradesh v. Prithi Chand (1996) 2 SCC 37 : (AIR 1996 SC 977). In this case 1 Kg. 15gm. Charas was recovered from the house. There was no compliance of Section 50 of N.D.P.S. Act. It was held that the requirement on the part of the searching officer to inform the accused of his right to choose to be searched in the presence of a Gazetted officer or Magistrate is mandatory. However, it was also held that the evidence obtained as a result of search and seizure in violation of mandatory requirement of Section 50 of N.D.P.S. Act does not become inadmissible. The question whether Section 50 of N.D.P.S. Act applies to recovery except the recovery from personal search, was neither involved nor considered in this case. Therefore, this decision is of no help.
7. The other case referred to is State of Punjab v. Jasbir Singh (1996) 1 SCC 288. This is also a Two Judges Bench decision. 70 bags containing 34 Kg. of poppy husk was recovered. However, the judgment does not show as to from which place it was recovered but naturally such quantity can not be recovered from the personal search. The acquittal was confirmed for the reason that mandatory requirement of Section 50 of N.D.P.S. Act was not complied with. It was observed that protection made by Section 50 is valuable right to the offender and compliance thereof is intended to be mandatory. However, the question whether on the facts of the case there was requirement of compliance of Section 50 of N.D.P.S. Act was not raised or considered.
8. The other decision is of 3 Judges Bench in Namdi Francis Nwazor v. Union of India (1998) 8 SCC 534. In this case the accused was leaving India by a Air India flight. He booked one bag which was loaded in the aircraft. It was later on checked and found to contain heroine. It was observed that on a plain reading of Sub-section (1) of Section 50, it is obvious that it applied to cases of search of any person and not search of any article in the sense that the article is at a distant place from where the offender is actually searched. It was therefore, held that Section 50 of N.D.P.S. Act does apply.
9. The other decision of 2 Judges Bench is in the case of Abul Rashid Ibrahim Mansuri v. State of Gujarat 2000 (1) JIC 889 (SC). In this case, gunny bags of charas were recovered from the autorickshaw. The question was referred to the Full Bench whether search of the person envisaged in Section 50 N.D.P.S. Act would encompass the gunny bags found inside the autorickshaw driven by the accused. No decision on the point was taken by the 2 Judges Bench of the Apex Court.
10. The last and important decision is of Constitutional Bench of 5 Judges in the case of State of Punjab v. Baldev Singh reported in (1999) 39 All Cri C 349 : (AIR 1999 SC 2378). In this case the reference to the Constitutional Bench was regarding admissibility of the evidence collected as a result of search conducted and violation of the provisions of Section 50 of N.D.P.S. Act, to the offence under N.D.P.S. Act. While considering the provisions of the N.D.P.S. Act to examine the question, it was observed in para 11 of the judgment:
On its plain reading Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the N.D.P.S. Act is also recovered the requirements of Section 50 of the Act are not attracted.
11. Therefore, after considering all the cases referred by the learned counsel and Section 50 of N.D.P.S. Act, I am of the view that the provisions of Section 50 applied only to the personal searches. In this case the recovery has been made from the truck and therefore Section 50 does not apply, The accused is not entitled to bail even if it is held that there I is no compliance of Section 50 of N.D.P.S. Act.
12. The request for bail is therefore, refused.