Orissa High Court
Mohan Behera vs State Of Odisha .... Opp. Party on 19 February, 2025
Author: Savitri Ratho
Bench: Savitri Ratho
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.12948 of 2023
An application under Section 439 of the Code of Criminal Procedure Code.
Mohan Behera .... Petitioner
-versus-
State of Odisha .... Opp. Party
Advocates appeared in this case through Hybrid Mode :
For Petitioner : Mr.Suraj Mohanty, Advocate
For Opp. Party : Ms.Samapika Mishra , ASC
CORAM:
JUSTICE SAVITRI RATHO
.................................................................................................
Date of Judgment : 19.02.2025 .................................................................................................
Savitri Ratho, J. This application under Section 439 of Cr.P.C. has been filed in connection with Athagarh Excise P.R. No.55 of 2023-24 corresponding to Special Case No.07 of 2023, pending in the file of the learned Addl.
Sessions Judge-cum-Special Judge, Athagarh for commission of offence punishable under Section 20 (b) (ii) (c) of the NDPS Act.
2. The prayer for bail of the petitioner Mohan Behera has been rejected vide order dated 07.11.2023 by the learned Special Judge, Athagarh, for which he has filed BL APL No. 12948 of 2023 before this Court.
BLAPL No.12948 of 2023 Page 1 of 283. This application was listed before me and heard alongwith BLAPL No. 8620 of 2023 filed by Sinu Beero as the earlier applications under Section - 439 Cr.P.C filed by Sinu Beero had been disposed of by me .
4. The prosecution allegation in brief is that on 30.07.2023 at about 4.15 a.m. 100 Kgs of non-duty paid ganja has been seized from the conscious and exclusive possession of the petitioner and co-accused, Sinu Beero who were travelling in a Scorpio vehicle bearing registration No.OR-02-BJ-9191. As they could not produce any documents in support of the transportation, the ganja was seized and they were arrested.
5. The prosecution allegation in brief is that on 30.07.2023 at about 4.15 a.m. 100 Kgs of non-duty paid ganja has been seized from the conscious and exclusive possession of the petitioner Mohan Behera and co-accused, Sinu Beero who were travelling in a Scorpio vehicle bearing registration No.OR-02-BJ-9191. As they could not produce any documents in support of the transportation, the ganja was seized and they were arrested.
SUBMISSIONS
6. Mr.Suraj Mohanty, learned counsel for the petitioner submitted BLAPL No.12948 of 2023 Page 2 of 28 that the petitioner has no criminal antecedents and is in custody since 30.07.2023. Investigation has been completed and chargesheeet has been filed. He submitted that the petitioner is entitled to bail in view of non-
compliance of Section 100 of Cr.P.C. (only one independent witness has been examined in place of two) and non-compliance of Sections 42 and 50 of the NDPS Act which has caused prejudice to the petitioner. He has drawn attention of the Court to the document where option of the petitioner under Section - 50 of the NDPS Act has been taken and submits that it does not bear the signature of any independent witness. In support of his submission, he relies on the decisions of this Court in the cases of Raghu @ Rahul Rajput Thakur v. State of Odisha reported in (2022) II ILR, Cuttack-590, Sarija Banu (A) Janarthani and others v.
State through Inspector of Police reported in (2004) 12 SCC 266 and Sk.Raj @ Abdul Haque @ Jagga v. State of West Bengal reported in (2018) 9 SCC 708.
7. Ms.S.Mishra, learned Addl. Standing Counsel has vehemently opposed the prayer for bail stating that 100 Kgs of ganja has been recovered from the vehicle being driven by the petitioner for which the rigorous of Section 37 of the NDPS Act will be attracted and will be a bar for releasing him on bail. She further submits that there has been substantial compliance of Section 100 of Cr.P.C. as well as Sections 42 and 50 of the NDPS Act. Even assuming that there has been some non-
BLAPL No.12948 of 2023 Page 3 of 28compliance, the petitioner has not shown that any prejudice caused to him, so his case is not covered by the decision of this Court in the case of Raghu @ Rahul Rajput Thakur (supra). She submits that Sections 42 and 50 of the NDPS Act have been complied with and there has been substantial compliance of Section 50 of the NDPS Act as one independent witness was present at the time of search. In absence of any prejudice being caused to the petitioner, the petitioner is not entitled to bail on account of alleged non-compliance of section-50 of the NDPS Act. She has submitted that the alleged violation of the provisions can be considered by the learned trial Court which is trying the case. In support of her submission, she relies on the decisions of the Supreme Court in the case of Ranjan Ku. Chadha v. State of Himachal Pradesh reported in (2023) SCC online SC 1262.
8. REVEVANT PROVISIONS OF THE NDPS ACT Section 37- Offences to be cognizable and non-bailable. - (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 1[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--
BLAPL No.12948 of 2023 Page 4 of 28(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 sub-section (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.
Section 42. Power of entry, search, seizure and arrest without warrant or authorisation.-- (l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally BLAPL No.12948 of 2023 Page 5 of 28 acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
2[Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:
Provided further that] if such officer has reason to believe that a search warrant or authorisation cannot be obtained without BLAPL No.12948 of 2023 Page 6 of 28 affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.]"
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 Gazette 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 subsection (1).
(3)The Gazette 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 BLAPL No.12948 of 2023 Page 7 of 28 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 Gazette 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.
54. Presumption from possession of illicit articles.--
In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of--(a)any narcotic drug or psychotropic substance or controlled substance;(b)any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;(c)any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or(d)any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured , for the possession of which he fails to account satisfactorily.
9. CASE LAW.
The Supreme Court in the case of State of Punjab v. Balbir BLAPL No.12948 of 2023 Page 8 of 28 Singh reported in (1994) 3 SCC 299 (paragraphs 7 and 23), held as follows:
"7. It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 CrPC would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been compiled with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions. In Deepak Ghanshyam Naik v. State of Maharashtra, a case arising under the NDPS Act, a Division Bench of the Bombay High Court considered the effect of non-compliance of Section 100(4) namely that two or more independent respectable inhabitants of the locality were not called to be present during the search and that on the other hand two Panchas of different locality were called to be present. The Division Bench considered the explanation that Parnaka was at a distance of BLAPL No.12948 of 2023 Page 9 of 28 half a kilometre from the place of occurrence and they called the Panch witnesses from that place and that they could not call somebody present on the road where the incident took place and held that there was no material to hold that Panch witnesses from Pamaka were in any way motivated to falsely implicate the accused. In Sunil Kumar v. State again a case arising under the NDPS Act, the Delhi High Court while considering the scope of Section 42 of the NDPS Act and Section 100(4) of CrPC observed that failure to associate independent persons in the search in a given situation would not affect the prosecution case in toto and the same cannot be thrown out or doubted on that ground alone. In this case it has also been observed that provisions of Sections 41 or 42 would not be attracted at this stage when the police had secret information that some persons would be reaching in a public place while in transit and the information was not about the specific presence of a contraband but was only about the likelihood of such articles being brought. It thus emerges that when the police, while acting under the provisions of Cr.PC as empowered therein and while exercising surveillance or investigating into other offences, had to carry out the arrests or searches they would be acting under the provisions of CrPC. At this stage if there is any noncompliance of the provisions of Section 100 or Section 165 CrPC that by itself cannot be a ground to reject the prosecution case outright. The effect of such non- compliance will have a bearing on the appreciation of evidence of the official witness and other material depending upon the facts and circumstances of each case. In carrying out such searches if they come across any substance covered by the BLAPL No.12948 of 2023 Page 10 of 28 NDPS Act the question of complying with the provisions of the said Act including Section 50 at that stage would not arise. When the contraband seized during such arrests or searches attracts the provisions of NDPS Act then from that stage the remaining relevant provisions of NDPS Act would be attracted and the further steps have to be taken in accordance with the provisions of the said Act."
"23. The counsel for the respondents, however, contended that an examination of Section 165 CrPC, as it stands, would show that recording such grounds is obligatory and failure to do so will vitiate the trial. In our view, the general principles laid down regarding the irregularities committed in such searches, equally apply even to cases where the grounds of belief as required under Section 165 are not recorded. In Bai Radha v. State of Gujarat while considering the scope of Section 15 of the Suppression of Immoral Traffic Act, whereunder the authorised officer had to record the grounds of his belief, on the effect of failure to do so, this Court observed thus :
"The principles which have been settled with regard to the effect of an irregular search made in exercise of the powers under Section 165 of the Code of Criminal Procedure would be fully applicable even to a case under the Act, where the search has not been made in strict compliance with its provisions. It is significant that there is no provision in the Act according to which any search carried out in contravention of Section 15 would render the trial illegal. In the absence of such a provision we must apply the law which has been laid down with BLAPL No.12948 of 2023 Page 11 of 28 regard to searches made under the provision of the Criminal Procedure Code."
While concluding on the legal effect with regard to an irregular searchunder Section 165 of the Code, it was observed thus :
"In conclusion it may be observed that the investigating agencies cannot and ought not to show complete disregard of such provisions as are contained in sub- sections (1) and (2) of Section 15 of the Act. The Legislature in its wisdom provided special safeguards owing to the nature of the premises which have to be searched involving inroads on the privacy of citizens and handling of delegate situations in respect of females. But the entire proceedings and the trial do not become illegal and vitiated owing to the non-observance of or non- compliance with the direction contained in the aforesaid provisions. The court, however, has to be very careful and circumspect in weighing the evidence where there has been such a failure on the part of the investigating agency but unless and until some prejudice is shown to have been caused to the accused person or persons the conviction and the sentence cannot be set aside."
The observations made in the above case have been relied upon by this Court in Shyam Lal Sharma v. State of MP . No doubt in K.L. Subhayya case failure to record the grounds of belief as required under Section 54 of the Mysore Excise Act amounted to an illegality vitiating the trial. But there it must be noted that Section 54 itself gives a mandate that such grounds of belief should be recorded. But under the NDPS Act, Sections BLAPL No.12948 of 2023 Page 12 of 28 41 and 42(1) do not give any such mandate. It is only proviso to Section 42(1) which makes the recording of grounds obligatory. In R.S. Seth Gopikisan Agarwal v. R.N. Sen, Assistant Collector of Customs and Central Excise , a question arose whether the custom officer while acting under Section 105 of the Customs Act and making a search as provided under Section 165(1) should record reasons. This argument was based upon Section 105(2) which lays down that the provisions of the CrPC relating to search so far as may be applied to search under this section. Considering this submission it was held thus :
"The argument is that the expression 'so far as may be' in Section 105(2) of the Act attracts Section 165(1) of the Code of Criminal Procedure and under that section, as the police officer has to record in writing the grounds of his belief the Assistant Collector of Customs shall also in authorizing the search record his reasons for doing so. But, in our view, Section 105 of the Act and Section 165(1`) of the Code of Criminal Procedure are intended to meet totally different situations. While under Section 105 of the Act the Assistant Collector of Customs either makes the search personally or authorizes any officer of Customs to do so, if he has reason to believe the facts mentioned therein, under Section 165(1) of the Code of Criminal Procedure the recording of the reasons for believing the facts is only to enable him to make a search urgently in a case where search warrants in the ordinary course cannot be obtained. It is, therefore, not possible BLAPL No.12948 of 2023 Page 13 of 28 to invoke that condition and apply it to a situation arising under Section 105 of the Act."
It therefore emerges that the empowered officer while effecting the search or arrest without warrantas provided under Sections 41 and 42(1) has to carry out search in accordance with Section 165 CrPC, but if he fails to record reasons, such a failure will not amount to an illegality vitiating thetrial. The effect of such a failure has to be kept in view in appreciating the evidence as held in Bai Radha case."
The Supreme Court in the case of Rahul Pratap Singh (supra) in paragraph-26 held that:
26. On a bare perusal of the non-obstante clause inserted in sub-section (1) and additional "limitations" stipulated in sub-section (2) of Section 37 outline the contours of the Court while considering bail application of one accused of having committed an offence under the NDPS Act.
26(A). Not only are the limitations imposed under Section 439 of the Criminal Procedure Code, 1973 are to be borne in mind, the restrictions placed under clause (b) of sub-section (1) of Section 37 have to be weighed and given its full play. The conditions imposed in subsection (1) of Section 37 is that (i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release and (ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence.
BLAPL No.12948 of 2023 Page 14 of 28Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail.
This Court in the case of Raghu @ Rahul Rajput Thakur (supra) in paragraphs 20, 21 and 22 held as follows:
20. Upon a careful scrutiny of the provisions contained in Section 50 of the N.D.P.S. Act and furtherkeeping in view the aforesaid analysis of law by the Hon'ble Supreme Court and applying the same to the facts of the present case and also considering the mandatory nature of the provisions, this Court upon careful scrutiny of the F.I.R.
as well as record produced before this Court, is of theconsidered opinion that no opportunity as has been provided under Section 50 of the N.D.P.S. Act was ever given to the petitioner in the present case. Therefore, on the basis of the materials available on record, this Court is constrained to hold that prima facie provisions contained in Section 50 ofthe N.D.P.S. Act has not been complied with in the case in hand, of course such finding is subject to detail evidence to be laid during trial.
21. To release the petitioner on bail, this Court has to examine whether the twin conditions asprescribed under Section 37 of the N.D.P.S. Act is complied with before any order is passed toenlarge the petitioner on regular bail. So far the twin conditions prescribed in Section 37 of theN.D.P.S. Act is concerned, the first condition i.e. the prosecutor must be given opportunity at thetime of hearing BLAPL No.12948 of 2023 Page 15 of 28 of application for bail is duly complied with in the present case. So far as the second condition i.e. Court is satisfied that there are reasonable grounds for believing that the accused-petitioner is not guilty of such offence and that he is likely to commit such offence while on bail is concerned, due to non-compliance of Section 50 of the N.D.P.S. Act, this Court is of the primafacie opinion that there exists a reasonable ground to hold that the petitioner prima facie is not guilty due to non-compliance of mandatory provision of Section 50 and the petitioner is likely tobe acquitted by the trial court, if there are no other materials / evidence brought on record in courseof trial. Further so far the condition that the petitioner is not likely to commit any such offence whileon bail is concerned, this Court is of the humble view that the same can be regulated by imposing stringent conditions with power to the prosecution to seek for cancellation of bail in the event thepetitioner indulges in similar nature of offence while on bail. On a conspectus of the aforesaid analysis and further taking into consideration the allegation made in the F.I.R./P.R. the bar contained under Section 37 of the N.D.P.S. Act would not be strictly applicable to the facts of thepresent case.
22. The next question that falls for consideration is whether the fact of compliance / non-complianceof mandatory provisions like Sections 42 and 50 of the N.D.P.S. Act could be examined by the Courtwhile considering the bail application ? There is no doubt that often to consider thecompliance/non-compliance of the BLAPL No.12948 of 2023 Page 16 of 28 mandatory provisions like Sections 42 and 50 of the N.D.P.S.Act, the court is required to look into the facts and materials collected by the prosecution or therecords maintained by the prosecution in course of search and seizure and investigation. Further tocome to such a conclusion, the Court is required to scan the evidence and examine the records.Therefore, this Court is of the considered view that if the non-compliance of mandatory provision of Sections 42 and 50 of the N.D.P.S. Act is clear and self-explanatory from a bare reading of the F.I.R./ Prosecution Report and the prosecution is not in a position to explain that the same has beensubstantially complied with, in such eventuality such non-compliance of Sections 42 and 50 of the N.D.P.S. Act could be considered and should be taken as a ground to enlarge the petitioneron bail following the Constitution Bench judgment (supra) on non-compliance of mandatory provisions like Sections 42 and 50 of the N.D.P.S. Act would vitiate the entire search, seizure andrecovery. Therefore, if there is a possibility that the accused is likely to be acquitted fornon-compliance of mandatory provision like Sections 42 and 50 of the N.D.P.S. Act, allowing thepetitioner to continue in custody would not serve the ends of justice. Therefore, this Court has nohesitation to hold that if prima facie from record/F.I.R., it can be established that Sections 42 and50 of the N.D.P.S. Act, which is mandatory in nature, has not been complied with, the courtconsidering the bail application can always use the same as ground to enlarge the petitioner on bailand in BLAPL No.12948 of 2023 Page 17 of 28 such event the power contained in Section 37 of the N.D.P.S. Act would not be attracted tothe facts of the case. In the case of Ranjan Ku.Chadha (supra) the Supreme Court upheld the conviction of the appellant , holding as follows :
"62. There is no requirement to conduct the search of the person, suspected to be in possession of a narcotic drug or a psychotropic substance, only in the presence of a Gazetted Officer or Magistrate, if the person proposed to be searched, after being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistrate categorically waives such right by electing to be searched by the empowered officer. The words "if such person so requires", as used in Section 50(1) of the NDPS Act would be rendered otiose, if the person proposed to be searched would still be required to be searched only before a Gazetted Officer or Magistrate, despite having expressly waived "such requisition", as mentioned in the opening sentence of sub-Section (2) of Section 50 of the NDPS Act. In other words, the person to be searched is mandatorily required to be taken by the empowered officer, for the conduct of the proposed search before a Gazetted Officer or Magistrate, only "if he so requires", upon being informed of the existence of his right to be searched before a Gazetted Officer or Magistrate and not if he waives his right to be so searched voluntarily, and chooses not to exercise the right provided to him under Section 50 of the NDPS Act.
63. However, we propose to put an end to all speculations and debate on this issue of the suspect being apprised by the BLAPL No.12948 of 2023 Page 18 of 28 empowered officer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistrate. We are of the view that even in cases wherein the suspect waives such right by electing to be searched by the empowered officer, such waiver on the part of the suspect should be reduced into writing by the empowered officer. To put it in other words, even if the suspect says that he would not like to be searched before a Gazetted Officer or Magistrate and he would be fine if his search is undertaken by the empowered officer, the matter should not rest with just an oral statement of the suspect. The suspect should be asked to give it in writing duly signed by him in presence of the empowered officer as well as the other officials of the squad that "I was apprised of my right to be searched before a Gazetted Officer or Magistrate in accordance with Section 50 of the NDPS Act, however, I declare on my own free will and volition that I would not like to exercise my right of being searched before a Gazetted Officer or Magistrate and I may be searched by the empowered officer." This would lend more credence to the compliance of Section 50 of the NDPS Act. In other words, it would impart authenticity, transparency and credit worthiness to the entire proceedings. We clarify that this compliance shall henceforth apply prospectively.
64. From the aforesaid discussion, the requirements envisaged by Section 50 can be summarised as follows:-
(i) Section 50 provides both a right as well as an obligation.
The person about to be searched has the right to have his search conducted in the presence of a Gazetted Officer or Magistrate if he so desires, and it is the obligation of the police BLAPL No.12948 of 2023 Page 19 of 28 officer to inform such person of this right before proceeding to search the person of the suspect.
(ii) Where, the person to be searched declines to exercise this right, the police officer shall be free to proceed with the search. However, if the suspect declines to exercise his right of being searched before a Gazetted Officer or Magistrate, the empowered officer should take it in writing from the suspect that he would not like to exercise his right of being searched before a Gazetted Officer or Magistrate and he may be searched by the empowered officer.
(iii) Before conducting a search, it must be communicated in clear terms though it need not be in writing and is permissible to convey orally, that the suspect has a right of being searched by a Gazetted Officer or Magistrate.
(iv) While informing the right, only two options of either being searched in presence of a Gazetted Officer or Magistrate must be given, who also must be independent and in no way connected to the raiding party.
(v) In case of multiple persons to be searched, each of them has to be individually communicated of their right, and each must exercise or waive the same in their own capacity. Any joint or common communication of this right would be in violation of Section 50.
(vi) Where the right under Section 50 has been exercised, it is the choice of the police officer to decide whether to take the suspect before a Gazetted Officer or Magistrate but an endeavour should be made to take him before the nearest Magistrate.
BLAPL No.12948 of 2023 Page 20 of 28(vii) Section 50 is applicable only in case of search of person of the suspect under the provisions of the NDPS Act, and would have no application where a search was conducted under any other statute in respect of any offence.
(viii) Where during a search under any statute other than the NDPS Act, a contraband under the NDPS Act also happens to be recovered, the provisions relating to the NDPS Act shall forthwith start applying, although in such a situation Section 50 may not be required to be complied for the reason that search had already been conducted.
(ix) The burden is on the prosecution to establish that the obligation imposed by Section 50 was duly complied with before the search was conducted.
(x) Any incriminating contraband, possession of which is punishable under the NDPS Act and recovered in violation of Section 50 would be inadmissible and cannot be relied upon in the trial by the prosecution, however, it will not vitiate the trial in respect of the same. Any other article that has been recovered may be relied upon in any other independent proceedings.
In the case of NCB vs. Kashif (Criminal Appeal No.5544 of 2024 @ SLP (Crl.) No. 12120 of 2024), the Hon'ble Supreme Court has held as follows :
"39. The upshot of the above discussion may be summarized as under:
(i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted BLAPL No.12948 of 2023 Page 21 of 28 literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act.
(ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act.
(iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the 34 International Conventions on the Narcotic drugs and psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone.
(v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused.BLAPL No.12948 of 2023 Page 22 of 28
(vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act.
40. The impugned order based on the inferences and surmises, in utter disregard of the statutory provision of the Act and in utter disregard of the mandate contained in Section 37 of the Act, and granting bail to the accused merely on the ground that the compliance of Section 52A was not done within reasonable time, is highly erroneous and deserves to be quashed and set aside. Since, the High Court has not considered the application of the respondent on merits and has also not considered the mandatory requirement under Section 37(1)(b) of the Act, we deem it appropriate to remand the case to the High Court for deciding the bail application of the respondent afresh on merits and in accordance with law.
The Supreme Court has also held thus : -
"24. Section 52A was inserted only for the purpose of early disposal of the seized contraband drugs and substances, considering the hazardous nature, vulnerability to theft, constraint of proper storage space etc. There cannot be any two opinions on the issue about the early disposal of the contraband drugs and substances, more particularly when it was inserted to implement the provisions of International Convention on the Narcotics Drugs and Psychotropic Substances, however delayed compliance or non-compliance of the said provision by the BLAPL No.12948 of 2023 Page 23 of 28 concerned officer authorised to make application to the Magistrate could never be treated as an illegality which would entitle the accused to be released on bail or claim acquittal in the trial, when sufficient material is collected by the Investigating Officer to establish that the Search and Seizure of the contraband substance was made in due compliance of the mandatory provisions of the Act. 25. It is significant to note that as per Section 54 of the said Act, the courts are entitled to presume, unless and until the contrary is proved that the accused had committed an offence under the Act in respect of any narcotic drug or psychotropic substance etc. for the possession of which he failed to account satisfactorily. Therefore, unless such statutory presumption is rebutted by the accused during the course of trial, there would be a prima facie presumption that the accused had committed the offence under the Act, if he is found to have possessed the contraband drug and substance, and if he fails to account satisfactorily, as contemplated in the said provision of Section 54. An anomalous situation would arise if a non-compliance or delayed compliance of Section 52A is held to be vitiating the trial or entitling the accused to be released on bail, though he is found to have possessed the contraband substance, and even if the statutory presumption is not rebutted by him. Such could not be the intention of the legislature.
26. It is further pertinent to note that as per the settled legal position even the evidence collected by an illegal search or seizure could not be excluded or discarded. Whether the evidence collected by an illegal search or seizure is admissible or not has been considered by this Court in a series of decisions and one of the earliest decisions is the decision of the BLAPL No.12948 of 2023 Page 24 of 28 Constitution Bench in case of Pooran Mal Vs. Director of Inspection (Investigation) New Delhi and Others (supra). It was observed therein that:
"24. So far as India is concerned its law of evidence is modelled on the rules of evidence which prevailed in English Law, and Courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure."
10. There can be quarrel over the proposition that an accused is entitled for an acquittal on account of violation of mandatory provisions of the NDPS Act. But the position is different when a prayer for bail is being considered. In view of the decision of the Supreme Court in the case of Kashif (supra), and the provisions of Section 54 of the NDPS Act, I am of the view that it would not be proper to scan the case diary to consider the infraction of provisions of the NDPS Act or the effect of alleged non compliance of the mandatory provisions of the NDPS Act for considering the application for bail and that task should be best left to the learned trial Court.
11. In view of the quantity of ganja recovered from the Bolero, the circumstances in which it was seized and the stringent requirements of Section - 37 of the NDPS Act, I am not satisfied that the petitioner should be released on bail.
BLAPL No.12948 of 2023 Page 25 of 2812. In view of the punishment prescribed for the offence the petitioner is accused of committing and the period spent by him in custody, I am also not satisfied that he should be realised on bail on the ground of violation of Article 21 of the Constitution and right to speedy trial.
13. The prayer for bail is accordingly rejected.
14. While rejecting the prayer for bail, keeping in mind the fact that the petitioner is in custody since 30.07.2023, and keeping in mind the decision of the Delhi High Court in the case of Athar Pervez vs State: 2016 SCC OnLine Del 6662 and the Supreme Court in the case of Arvind Kejriwal v. Directorate of Enforcement, (2024) 9 SCC 577 on grant of interim bail, I am inclined to direct for release of the petitioners on interim bail for a period of three months.
15. The petitioner Mohan Behera shall be released on interim bail for a period of three months by the learned Court below in seisin over the matter in connection with the aforesaid case, on such terms and conditions as deemed fit and proper, including the following conditions:-
i) He shall furnish cash surety of Rs 20,000/-.
ii) He shall not leave Cuttack District , without permission of the learned trial Court.BLAPL No.12948 of 2023 Page 26 of 28
iii) He shall furnish his local address and permanent to the Court, which will be verified through the Police, before the petitioners are released on bail.
iv) He shall furnish his active mobile number to the Court, which shall be verified, before he is released on bail. He shall intimate any change in his mobile number to his counsel immediately, so that it can be intimated to the Court.
v) He shall remain personally present in the learned trial court on each date it is fixed for trial.
vi) He shall appear before the Athagarh Police Station on every alternative Sunday between 10.00 am to 11.00 a.m. unless permitted by the learned trial court to leave Cuttack District.
vii) He shall surrender before the learned trial court after expiry of the period of three months , or by 07.06.2025 whichever is earlier..
16. Violation of any condition will entail in cancellation of bail / recall of this order.
17. The BLAPL is accordingly disposed of.
18. The learned trial Court is requested to make an endeavour to complete the trial within a period of six months , if there is no other impediment.
BLAPL No.12948 of 2023 Page 27 of 2819. It is open to the petitioners to move the learned trial Court for bail afresh in case there is undue delay in completion of the trial.
20. Copy of this order shall be sent by Mr. Gyanalok Mohanty, learned Standing Counsel for on onward transmission to the IIC, Athagarh Police Station.
21. The IIC, Atahgarh Police Station shall immediately bring to the notice of the learned trial court, if the conditions imposed are violated.
22. No observation in this order should influence the learned trial court during trial, as they have been made for the purpose of consideration of the prayer for bail.
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(SavitriRatho) Judge Orissa High Court, Cuttack Dated 19th February, 2025 /Bichi Signature Not Verified Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 28-Feb-2025 11:56:18 BLAPL No.12948 of 2023 Page 28 of 28