GANGA RAM v. STATE OF UTTAR PRADESH — 1992 DIGILAW 1184 (ALL)

K. C. BHARGAVA, J. ( 1 ) THESE are three bail applications (i) moved by Ganga Ram in case Crime No. 167 of 1991 under Section 8/21/22 of the Narcotic Drugs and Psychotropic Substances Act, Police Station Kothi, District Barabanki, (ii) moved by Tahir in case Crime No. 62 of 1992 under Section 8121 of the Narcotic Drugs and Psychotropic Substances Act, Police Station Zaidpur, District Barabanki, and (iii) moved by Pratap Verma in case Crime No. 56 of 1992 under Section 8121 of the Narcotics Drugs and Psychotropic Substances Act, Police Station Zaidpur, District Barabanki. They raise similar questions of law regarding preparation of the recovery memo. ( 2 ) LEARNED Counsel for the applicants as well as learned Additional Government Advocate have been heard. Learned Counsel for the applicants have argued that the recovery memos in these cases have not been prepared in accordance with the provisions of the section 50 of N. D. P. S. Act read with Section 51 of the Code of Criminal Procedure (hereinafter to be referred to as the Code ). According to the learned Counsel for the State the search memos prepared in these three cases are in accordance with Section 51 of the Code. He has further argued that even if there are irregularities in the recovery memos then too it , cannot be a ground for bail and that question has to be seen at the time of trial. ( 3 ) IT may be mentioned here that in Section 50 of the Narcotic. Drugs and Psychotropic Substances Act (hereinafter to be referred to as the Act) there is no provision as to how a recovery memo is to be prepared if a search is taken. Section 51 of the Act provides that the procedures of the Code of Criminal Procedure shall apply in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, seizure and issuance of warrants. Section 51 of the Code deals with the search of arrested persons. Section 51 of the Act provides that the procedures of the Code of Criminal Procedure shall apply in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, seizure and issuance of warrants. Section 51 of the Code deals with the search of arrested persons. Sub-Clause 1 of this section is relevant for the purposes of the present controversy which is being reproduced as under: - 51 Search of arrested person.- (1) Whenever a person is arrested by a police officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail, and whenever a person is arrested without warrant, or by a private person under a warrant, and cannot legally be admitted to bail, or is unable to furnish bail, the officer making the arrest or when the arrest is made by a private person the police officer to whom he makes over-the person arrested, may search such person, and place in safe custody all articles, other than necessary wearing-apparel, found upon him and where any article is seized from the arrested person, a receipt showing the articles taken in possession by the police officer shall be given to such person. T This provision of the search of the person comes in operation only when a search of a person who has been arrested earlier is taken. Search can be taken either upon a warrant or without a warrant. This section also does not provide that signatures of the witnesses will be taken on the recovery memo after the search of a person is taken. It merely provides that a receipt showing the articles taken in possession by the police officer shall be given to such person; after his search has already been taken. This section does not specifically provide or cast a duty upon the searching officer to provide a copy of the search memo. The searching officer is only bound to give a receipt which may indicate the articles which have been recovered from the possession of the person concerned and of which a seizure has been made. This section does not specifically provide or cast a duty upon the searching officer to provide a copy of the search memo. The searching officer is only bound to give a receipt which may indicate the articles which have been recovered from the possession of the person concerned and of which a seizure has been made. If a particular item is not seized even though it is found in the search then its memo is not to be prepared, that is to say that the article which has not been seized is not to be mentioned in the search memo and no receipt thereof is to be given. Therefore the matter as to whether a copy of the recovery memo is to be supplied to the person whose search has to be taken, is to be interpreted in terms of the provisions of Section 51 of the Code. ( 4 ) LEARNED Counsel for the applicants have placed reliance on the case of Bhanu Pratap v. State. In that case a single Judge of this Court has an occasion to deal with recovery memo. The facts of that case are not similar to the facts of the present case. In that case the view taken was that when the searching officers go to the extent of intentionally violating the provisions of law and making clumsy efforts to conceal the violation this would make their acts highly suspect. In that case it was also held that unless copy of the recovery memo had been prepared how then it could be delivered to the person concerned. In that case in the recovery memo itself it was written that a copy was given which was tom by the accused. On these facts bail was granted and preparation of recovery memo was doubted in that case. The next case relied upon by the learned Counsel for the applicants is Shafiq Ahmed v. State of U. P. That case also does not apply to the facts of the present case because in that case recovery memo was not prepared at the place where the search was taken but was prepared at some other place. ( 5 ) LEARNED Additional Government Advocate has placed certain case law on the point as to what should be the considerations for grant of bail. ( 5 ) LEARNED Additional Government Advocate has placed certain case law on the point as to what should be the considerations for grant of bail. He has made specific reference to the case of State of Maharashtra v. Captain Budhikota Subharao. That was a case in which previous bail application was rejected only two days before and thereafter on second bail application the bail was allowed. The Hon ble Supreme Court opined that decision has to be made having regard to the nature of the crime, the circumstances in which it was committed, the background of the accused, the possibility of his jumping bail, the impact that his release may make on the prosecution witnesses its impact On society and the possibility of retribution et. It was also opined that unless there are cogent reasons second bail application could not have been allowed-by the High Court. The other case is state (Though Deputy Commissioner of Police, Special Branch, Delhi v. Jaspal Singh Gill. In that case also the principles on which bail should be granted have been enumerated. The next relied upon by the learned Addi. Government Advocate is Mahadeo v. State. That, was a case which was decided by a learned single Judge of this Court at Lucknow. In that case the provisions of Sections 51 and 100, Cr. P. C. and Regulation 154 of the U. P. Police Regulations were also considered. Two decisions of the Honble Supreme Court were also considered in that case. It was held that the search of accused was taken under Section 51, Cr. P. C. It does not require that when search of arrested person is made, signature of the person searched shall be taken on the memo of recovery and its copy should be given to him. It simply requires that when any article is seized from the arrested person a receipt showing the articles taken in possession by the Police Officer shall be given to such person. In that case also there was no endorsement on the recovery memo that any such receipt was given to the accused. It simply requires that when any article is seized from the arrested person a receipt showing the articles taken in possession by the Police Officer shall be given to such person. In that case also there was no endorsement on the recovery memo that any such receipt was given to the accused. Therefore this view also supports the contention of the learned Counsel for the State that if a search is taken under Section 51 of the Code then only a receipt showing the seized articles is to be given to the accused and if it has not been given then it is merely an irregularity which will not entitle an accused to claim bail. These are the matters which are to looked into at the stage of the trial as to what is the effect of not giving receipt of the seized articles. In such cases Section 100, of the Code will also not apply because under that section a search is taken only when the police has a search warrant for any purpose. Those provisions are entirely different from the provisions of Section 51 of the Code. It was also held that irregularities, if any will not vitiate the search. Therefore at this stage it will be sufficient to say that if there is any irregularity in search of an accused person under the provisions of Section 51 of the Code then only on this ground the accused is not entitled to claim bail. These ate the questions which may be considered at the time of the trial. ( 6 ) THE second question which has been raised is that the signatures of the witnesses have not been taken on the recovery memo. This point is also covered in the case of Mahadeo v. State (supra ). After considering the provisions of Section 51 of the Code and Regulation 154 of the U. P. Police Regulation it was held in that case that if signatures of the witnesses have not been taken on the recovery memo this will be merely an irregularity and its effect will be seen at the time of trial. Therefore it cannot be said that this irregularity will entitle the accused persons searched to claim bail on this ground. As mentioned earlier under Section 51 of the Code the signatures of the witnesses on the search memo are not necessary. Therefore it cannot be said that this irregularity will entitle the accused persons searched to claim bail on this ground. As mentioned earlier under Section 51 of the Code the signatures of the witnesses on the search memo are not necessary. It is in the light of these provisions that bail application has to be considered at this stage, ( 7 ) IN the case of Ganga Ram (applicant) a perusal of the recovery memo will go to show that after the signatures of the witnesses it is! mentioned that a copy of the Fard is being given to the actual person and thereafter there is signature of the accused Ganga Ram and two other persons to whom the copy of the Fard was given. In this case it is argued that the provisions of Section 50 of the Act have not been complied with as the accused persons were not told that they can be search in the presence of a gazetted officer. A pursuant of the search memo would go to show that from before the police officer had no information that the accused persons were having Narcotic Drugs and, Psychotropic Substances. These substances were recovered only when the search was taken of the accused persons. Therefore it was riot incumbent on the searching officer to inform the applicant that he can demand his search in the presence of a specified gazetted officer or a Magistrate. Therefore the applicant is not entitled to bail. ( 8 ) IN the case of Tahir (applicant) a perusal of the recovery memo goes to show that the recovery memo was prepared in the light of torch. The learned Counsel for the applicant has argued that such a long recovery memo could not have been prepared in the torch light which runs into-three pages. This is again a question of fact which can be dealt with after the evidence is led as to whether the recovery memo could have been prepared in the torch or not. The signatures of the witnesses appear on the recovery memo and after the signatures have been obtained a note has been made that a copy of this Fard is being given to the accused. Thereafter there are signatures of the writer of the Fard. The signatures of the witnesses appear on the recovery memo and after the signatures have been obtained a note has been made that a copy of this Fard is being given to the accused. Thereafter there are signatures of the writer of the Fard. Therefore it cannot be said that the applicant is entitled to bail on any of the grounds raised by him in his bail application. ( 9 ) THE last is the case of Pratap Verma. In this case also the recovery memo was prepared in the torch light and a copy of the Fard was given to the applicant. His signatures also appear in token thereof. The fact as to whether the Fard has been prepared in the torch light or not can be seen during trial when the evidence is led by the parties. The applicant Pratap Verma also is not entitled to bail on these grounds. All the three bail applications are, therefore, rejected. Application rejected. .