RAJ BAHADUR v. STATE OF UTTAR PRADESH — 1990 DIGILAW 1253 (ALL)

G. D. DUBEY, J. ( 1 ) THIS is an application for bail. ( 2 ) ON a search of the applicant 5 gm. of brown sugar was recovered. The applicant has been arrested in connection with an offence punishable under Sections 17/18, N. D. P. S. Act (hereinafter referred to as Act ). ( 3 ) IT has been argued that the search was not in accordance with Section 51 of the Act. It was also urged that public witnesses were not summoned to witness the search and recovery. Lastly, it was urged that Section 37 of the Act is not applicable to the High Court. Therefore, the High Court can look into the matter from its own angle. ( 4 ) I have heard the learned A. G. A. also. He has raised the preliminary objection that the Union of India should be also made a party to this case because the Union of India has a cell to control the menace of Narcotic Drugs and Psychotropic substances. ( 5 ) IN reply to the above objection the learned counsel for the applicant has urged that the sole purpose of making the State Government or Union of India as a party to the petition is only to give an opportunity to the State Government or Union of India to oppose the application if they so like. In this case the investigation is being done by the agency of State Government. Hence the State Government has been made a party. ( 6 ) IN respect of matters relating to the Act the provisions of Section 37 of the Act deal with the bail and cognizance in respect of offences under the Act. This section as amended up to this date reads as under:- "37. Offences to be cognizable and non-bailable. Hence the State Government has been made a party. ( 6 ) IN respect of matters relating to the Act the provisions of Section 37 of the Act deal with the bail and cognizance in respect of offences under the Act. This section as amended up to this date reads as under:- "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 a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond 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. (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 Procedures 1973 (2 of 1974) or any other law for the time being in force on granting of bail. ( 7 ) THE above quoted section only provides that the Public Prosecutor must be heard before any person can be granted bail. Since notice had been given to the Government Advocate then it amounted to a notice to the Public Prosecutor, the Government Advocate holds the status of public prosecutor also. In such a situation sufficient compliance has been made by impleading State Government as a party and giving notice to the Government Advocate of this application. The preliminary objection, therefore, has no force, at all. Union of India is not required to be made a party. ( 8 ) IN respect of his first contention the learned counsel for the applicant has cited the State of Himachal Pradesh v. Sudarshan Kumar. 1989 Cri LJ 1412. It was held in this case by a Division Bench of Himachal Pradesh High Court that the designated officer is bound to inform person of his right to be taken without unnecessary delay to nearest Gazetted Officer or to nearest Magistrate to be searched in his presence. 1989 Cri LJ 1412. It was held in this case by a Division Bench of Himachal Pradesh High Court that the designated officer is bound to inform person of his right to be taken without unnecessary delay to nearest Gazetted Officer or to nearest Magistrate to be searched in his presence. It has been urged that in the recovery memo it has been mentioned at the end that after recovery the applicant had declined to avail the opportunity to get himself searched before a gazetted officer or a Magistrate. It was urged that this was not a sufficient compliance. It is not desirable to make any comment on this matter unless the officer recovering the injuries criminating material had been examined and had an opportunity to explain the text of his recovery memo. Moreover Section 37 of the Act quoted above states that an accused can be bailed out only if he is able to show that no case is made out against him and that he will not repeat the offence. ( 9 ) WHETHER there was any irregularity in the search is a matter of evidence. It is not desirable to express any opinion on this aspect at this juncture. ( 10 ) RELYING upon Geeta v. State, 1989 Cri LJ 1165 it was argued that mandatory requirement of Section 50 (4) of the Act were not complied and the witnesses had not been summoned. There is a note in the recovery memo cum first information report that no person of the locality had agreed to be a witness in the matter. Whether even in such a circumstance the taking of a witness is mandatory is a matter for consideration by the lower Court. This alleged lapse in compliance of Section 50 of the act cannot be a sufficient ground for enlarging the applicant on bail. ( 11 ) IN respect of the last contention regarding the applicability of Section 37 of the Act the learned counsel for the applicant has relied upon Anil Kumar v. State of Maharashtra, 1990 Cri LJ 2058. This case law is not applicable to the matter. It was based on different facts. In this matter the case was triable exclusively by the Court of Session. The Magistrate had granted bail in the case u/ S. 21 of the Act. The learned Session Judge had cancelled the bail. This case law is not applicable to the matter. It was based on different facts. In this matter the case was triable exclusively by the Court of Session. The Magistrate had granted bail in the case u/ S. 21 of the Act. The learned Session Judge had cancelled the bail. Considering this aspect of the matter a Single Judge of the Bombay High Court had observed that the Session Judge has jurisdiction to entertain the application for cancellation of bail and provision of Section 439 (2) of the Code of Criminal Procedure were applicable. ( 12 ) IN paragraph 11 of his judgment Hon. M. S. Ratnaparkhi, J. had observed that at the stage of bail provision of Section 37 were applicable. It was observed by him:"if we read S. 37 (1) (b) (ii) of the said Act, it virtually means that no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond 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 such offence while on bail. The Court has thus to satisfy itself with these two requirements before it can grant bail. "in paragraph 21 judgment it was stated that provision of Section 439 (2) of the Code of Criminal Procedure is not inconsistent with Section 37 of the Act hence the provision regarding cancellation were applicable. Thus reading of this case law I find that it goes against the applicant. There is no force in the contention that Sections 37 is not applicable to the High Court. ( 13 ) IN 1989 Cri LJ 1412 (supra) it was held that Criminal Procedure Code is not applicable where any different procedure has prescribed by any law. Since the Act prescribes a separate provision for bail the general provisions of bail under the Code of Criminal Procedure will not be applicable. The applicant has to show that his case comes within ambit of Section 37 of the Act. ( 14 ) COMING to the facts of this case it was urged by the learned counsel for the applicant that the Sub-Inspector was inimical to the proprietor of the shop where the applicant was working. The applicant has to show that his case comes within ambit of Section 37 of the Act. ( 14 ) COMING to the facts of this case it was urged by the learned counsel for the applicant that the Sub-Inspector was inimical to the proprietor of the shop where the applicant was working. The applicant and one Omvir are said to have been working in the medical shop. Annexures 2 to 4 are telegrams sent by the proprietor of the Medical Firm on 22-7-90, 29-7-90 and 11-10-90 alleging an apprehension from the hands of the Sub-Inspector Vikram Singh, Station House Officer, Police Station Rakabganj, District Agra. It was argued that in the above circumstance the false implication of the applicant cannot be ruled out. ( 15 ) IT has been argued by the learned Deputy Government Advocate that it is not easy to get brown sugar and transplant. It was also urged that the brown sugar is turning as a menace and as well a lucrative business and the telegrams appears to be a pre-thought of plan to avoid any possible arrest. ( 16 ) WITHOUT expressing any opinion on the last contention I direct that the applicant be released on bail on his furnishing two adequate sureties and a personal bond each in the like amount to the satisfaction of the C. J. M. Agra in Crime No. 406 of 1990, u/s. 17/18 of N. D. P. S. Act, P. S. Rakabgenj, Agra. Application allowed. .