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1991 DIGILAW 102 (HP)

HARI CHAND v. STATE

1991-07-25

V.K.MEHROTRA

body1991
JUDGMENT V. K. Mehrotra, A.C.J.—I have heard Shri K. S. Saini for the petitioner and Shti M. L. Chauhan, Asstt. Advocate General, for the State. 2. On the basis of the decision of the Supreme Court in Narcotics Control Bureau v Kishan Lal and others, AIR 1991 SC 558, it has been urged by Shri Chauhan that the restrictions contained in section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act), are applicable even where the prayer for bail is being considered by the High Court. He has also urged that there-has been compliance with the requirement, inter alia, of section 50 of the Act, as interpreted by a Division Bench of this Court in State of Himachal Pradesh v Sudarshan Kumar etc. 1989 Cr LJ 1412. He says that the statement made in the case, as is clear from the case diary, by the Station House Officer, was that he had informed the accused-applicant that he has a right to make a request that he be taken to a gazetted officer before the search of his person was undertaken. Shri Chauhan has also urged that, at this stage, the Court has only to see whether there was any material before it to come to a conclusion that the mandatory provisions of the Act had not been complied with and not to weigh the evidence. He has placed reliance upon the observations contained in para 21 of a judgment of the Bombay High Court in Anil Kumar v. State of Maharashtra, 1990 Cr LJ 2058, wherein, while considering the question of cancellation of bail, the High Court, inter alia, observed that: "......The investigation is in progress There is nothing on record to show that there is no compliance with the mandatory provisions. The factual aspect has not been raised either before the Sessions Judge or in the revision petition. Thus prima facie the learned Sessions Judge was quite justified in cancellation of the bail........." 3. Shri Chauhan has also emphasised that the trial is fixed before the Court below on August 13, 1991 for the entire prosecution evidence as is mentioned in the order dated June 29, 1991, rejecting the prayer for bail made before him by the petitioner. Thus prima facie the learned Sessions Judge was quite justified in cancellation of the bail........." 3. Shri Chauhan has also emphasised that the trial is fixed before the Court below on August 13, 1991 for the entire prosecution evidence as is mentioned in the order dated June 29, 1991, rejecting the prayer for bail made before him by the petitioner. He has also pointed out that in the heading of this order, however, it has been mentioned that the trial was fixed for August 22, 1991 in the Court of Sessions Judge, Kullu. 4. What has been urged, in reply, by Shri KL S. Saini, appearing for the applicant, is that implicit reliance cannot be placed on the statement made by the Station House Officer even for the purpose of deciding whether the petitioner deserves to be released on bail or not, as observed by a Division Bench of the Punjab and Haryana High Court, in para 16 of its judgment, in Amrit Singh v. State of Haryana 1990 (2) Recent Criminal Reports 525. 5. In that case, the matter was being considered by the Bench in an appeal against the conviction of the appellant for being found in possession of 4 Kgs. of opium. The learned Judges of the Bench, after considering the evidence in the case, recorded a finding that there could be no escape from the conclusion that violation of the provisions of section 50 of the Act, in the case of appellant Amrit Singh, stands writ large. They also observed that: "This and the other circumstances, as pointed out earlier, rendered the conviction of the appellant wholly unsustainable and it is accordingly hereby set aside." 6. What was urged with some emphasis by Shri Saini was that the principle deducible from the observations made by the Division Bench in the case of Amrit Singh, was that once it is found that there is violation of section 50 of the Act, the Court should take the view that an accused person would be entitled to grant of bail on a prima facie satisfaction of the Court that there was such violation. Shri Saini has also placed reliance upon another Division Bench judgment of the Punjab and Haryana High Court in Kuldip Singh v. State of Haryana, 1989 Chandi Cri Cases 183. Shri Saini has also placed reliance upon another Division Bench judgment of the Punjab and Haryana High Court in Kuldip Singh v. State of Haryana, 1989 Chandi Cri Cases 183. That, too, was a case where the High Court was considering the matter in an appeal against the conviction of Kuldip Singh and the sentence awarded to him. In para 6 of the judgment, upon which the learned Counsel placed reliance in particular, the observations are to the effect that the provisions of sections 42 and 57 of the Act were mandatory in character and that "these provisions have to be strictly construed .....yet there is no scintilla of evidence on record to show the compliance of the same in this case. 7. Shri Saini also laid emphasis upon some observations made by the Division Bench of this Court in Sudershan Kumar (supra), in para 26, to the effect that "the provisions of sub-section (6) of section 100 of the Code were also not complied with inasmuch as no copy of the recovery memo prepared under section 100 ibid, duly signed by the witnesses, was delivered to the accused or any other person." He urged that a similar position obtained in the present case and the petitioner was entitled to the benefit thereof. 8. As observed earlier, the decisions upon which reliance has, in particular, been placed by Shri Saini, including that in the case of Sudarshan Kumar, were rendered when the High Courts were considering the entire evidence on the record and in an appeal against the conviction of the appellant before the Court. 9. In the present case, admittedly, that stage has not yet arrived. True it is that the investigation is over and the evidence, which the prosecution wishes to place before the Court, is known. However, the evidence is yet to bear its judicial scrutiny by the trial Court, before which the trial is fixed in the next month itself. The existence or otherwise of the short-comings in the prosecution evidence, pointed out by Shri Saini, will be considered by the trial Court soon. 10. However, the evidence is yet to bear its judicial scrutiny by the trial Court, before which the trial is fixed in the next month itself. The existence or otherwise of the short-comings in the prosecution evidence, pointed out by Shri Saini, will be considered by the trial Court soon. 10. Since the entire evidence against the petitioner is to be adduced before the trial Court in the next month itself, and its effect is to be considered by that Court, I am not inclined to direct that the petitioner be enlarged on bail at this stage, However, if the trial gets delayed for any reason, for which the petitioner is not responsible, it will be open to the petitioner to approach this court again with a prayer for being enlarged on bail. The application is rejected.