ZAKIR HUSAIN v. STATE OF UTTAR PRADESH — 1997 DIGILAW 228 (ALL)

S. R. SINGH, J. ( 1 ) THIS application for bail under Section 439, Cr. P. C. arises out of case Crime No. 107 of 1996 under Section 8/18/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act) registered at police station Dildarnagar, district Ghazipur. ( 2 ) ACCORDING to the prosecution story as set out in the First Information Report, Sub-Inspector Kale Deen Azad along with the two constables was present at Bahawra Crossing on 28-7-1996 for checking of the vehicles and fire arms and surveillance over anti-social elements. There he received an information from the Mukhbir Khas that a person in possession of narcotics was about to go from Dildar Nagar to Village Pachokhar and he could be arrested along with contraband article if steps were taken quickly. On the basis of the said information the police party led by Sub-Inspector Kale Deen Azad left for the destination and nabbed the applicant as soon as he reached at Pachokhar Tiraha at about 9-10 hours. On being apprehended the applicant was told that according to the information received by the police he was in possession of narcotics and if he so desires he could be produced before a Magistrate or a Gazetted Officer for search. The applicant, it is stated, apologetically declined the offer to be searched before a magistrate or a gazetted officer whereupon search of his person was conducted by the police party and five gms. of heroin is said to have been recovered from him. The applicant, according to the F. I. R. admitted the article so recovered to be heroin. It is stated that certain members of public has, in the meantime, reached the spot but they refused to be the witnesses of the search and recovery, whereupon search memo was prepared by the Sub-Inspector Kale Deen Azad. The defence is that the applicant has been falsely implicated in the case due to enmity with the police. ( 3 ) SRI D. K. Singh, learned counsel appearing for the applicant pressed for bail on the ground of violation of Sections 42, 50 and 57 of the Act. The defence is that the applicant has been falsely implicated in the case due to enmity with the police. ( 3 ) SRI D. K. Singh, learned counsel appearing for the applicant pressed for bail on the ground of violation of Sections 42, 50 and 57 of the Act. The learned counsel urged that the evidence of the alleged recovery of contraband from the applicant collected in breach of the provisions aforestated would invalidate the trial and if such evidence of recovery and seizure is ignored, there would be no reasonable ground for believing that the applicant is guilty of any offence punishable under the Act. Sri Manphool Singh, learned Additional Government Advocate refuted the submissions aforestated and urged that irregularity in search and seizure would not ipso facto invalidate the trial. ( 4 ) SO far as the submission based on the alleged breach of Section 42 is concerned, suffice is to say that it was not a case of search of a building, conveyance or enclosed place and hence it was not obligatory on the part of the officer conducting search to comply with the provisions of Section 42 of the Act. Seizure and arrest in the instant case would be governed by Section 43 of the Act. The requirement of recording the grounds of belief that arrest warrant or authorisation cannot be obtained without affording opportunity for concealment of evidence or facility for the escape of the offender as visualised by the mandatory provisions contained in the proviso to Section 42 (1) is not a condition precedent to a search, seizure and arrest under Section 43 of the Act. In State of Punjab v. Balbir Singh, 1994 (1) EFR 510 it has been held that Section 43 of the Act which deals with the power of arrest and seizure in public place is slightly different from the provisions of Section 42 in certain respects. In State of Punjab v. Balbir Singh, 1994 (1) EFR 510 it has been held that Section 43 of the Act which deals with the power of arrest and seizure in public place is slightly different from the provisions of Section 42 in certain respects. Under this provision any officer empowered under Section 42 of the Act has the power to detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV of the Act and if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company without recording reasons of his belief unlike the mandatory requirement of the proviso to Section 42 (1) of the Act. ( 5 ) AS regards non-submission of a full report of the particulars of arrest and seizure by the concerned officer to his immediately superior within 48 hours of the arrest and seizure as required by Section 57 of the Act is concerned, it is no doubt a circumstance of the evidentiary value but it does not by itself vitiate the trial in that. Section 57 has been held to be directory and not mandatory by the Supreme Court in Balbir Singh (supra ). Non-compliance with the provisions of Section 57 of the Act may affect the credibility of the evidence of seizure but it would not be a ground to release the applicant on bail. ( 6 ) IT may be observed that the power of the High Court under Section 439, Cr. P. C. to grant bail to a person accused of an offence punishable for a term of imprisonment of five years or more under the Act is subject to the limitations and restrictions contained in Section 37 of the Act. The Section as it stands substituted by Act No. 2 of 1989, reads as under :"37. P. C. to grant bail to a person accused of an offence punishable for a term of imprisonment of five years or more under the Act is subject to the limitations and restrictions contained in Section 37 of the Act. The Section as it stands substituted by Act No. 2 of 1989, reads as under :"37. Offence 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 on his own bond unless - (1) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor oppose 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 or any other law for the time being in force. on granting of bail. " ( 7 ) IN a case of non-bailable offence as provided in Section 437, Cr. P. C. and as held by the Supreme Court in Union of India v. Thamisharasi, 1995 (4) SCC 190 : (1995 AIR SCW 2543) "the requirement of reasonable grounds for belief in the guilt of the accused to refuse bail is more stringent and, therefore, more beneficial to the accused than the requirement of reasonable ground for belief that he is not guilty of the offence under Section 37 of the NDPS Act. " The Supreme Court went on to hold as follows :"under Section 437, Cr. P. C. the burden is on the prosecution to show the existence of reasonable grounds for believing that the accused is not guilty while under Section 37 of the Act the burden is on the accused to show the existence of reasonable grounds for the belief that he is not guilty of the offence. P. C. the burden is on the prosecution to show the existence of reasonable grounds for believing that the accused is not guilty while under Section 37 of the Act the burden is on the accused to show the existence of reasonable grounds for the belief that he is not guilty of the offence. In the first case, the presumption of innocence in favour of the accused is displaced only on the prosecution showing the existence of reasonable grounds to believe that the accused is guilty while under the NDPS Act it is the accused who has to show that there are reasonable grounds for believing that he is not guilty. ""the limitation on the power to release on bail in Section 437, Cr. P. C. is in the nature of a restriction on that power, if reasonable grounds exist for the belief that the accused is guilty. On the other hand, the limitation on this power in Section 37 of the NDPS Act is in the nature of a condition precedent for the exercise of that power, so that the accused shall not be released on bail unless the court is satisfied that there are reasonable grounds to believe that he is not guilty. Under Section 437, Cr. P. C. it is for the prosecution to show the existence of reasonable grounds to support the belief in the guilt of the accused to attract the restriction on the power to grant bail, but under Section 37 NDPS Act it is the accused who must show the existence of grounds for the belief that he is not guilty, to satisfy the condition precedent and lift the embargo on the power to grant bail. This appears to be the distinction between the two provisions which makes Section 37 of the NDPS Act more stringent. This appears to be the distinction between the two provisions which makes Section 37 of the NDPS Act more stringent. " ( 8 ) REPORT of arrest and seizure, within forty-eight hours next after the arrest and seizure, if made to the immediate superior officer, as required by Section 57 of the Act would certainly corroborate the prosecution case but failure to do so would not vitiate the trial and hence it cannot be said, at this stage, that by showing non-compliance of Section 57, the accused applicant has made out reasonable ground for the court to believe that he is not guilty nor can it be said, on that basis alone, that he has satisfied the condition precedent and lifted the "embargo on the power to grant bail". In Balbir Singh (supra) it has been held that if Sections 52 and 57 are not strictly complied with "that by itself cannot render the acts done by these officers null and void and at the most it may affect the probative value of the evidence regarding arrest of search" and "such violation by itself does not invalidate the trial or conviction if otherwise there is sufficient material. " ( 9 ) THE questions that remain to be considered are as to what is the purport and import of Section 50 of the Act and whether the violation of the Section would constitute a ground for bail under Section 37 of the Act read with Section 439, Cr. P. C. It is no longer res integra that Section 50 is couched and formulated in a language which suggests that the suspect/accused has two-fold rights under the said Section. Firstly, the right to be searched in presence of "nearest gazetted officer of any of the departments mentioned in Section 42 or nearest magistrate" and secondly, the right to be informed of the above mentioned first right before the search is actually made. Firstly, the right to be searched in presence of "nearest gazetted officer of any of the departments mentioned in Section 42 or nearest magistrate" and secondly, the right to be informed of the above mentioned first right before the search is actually made. In other words the Section confers a right in favour of the suspect/accused to be searched in presence of the nearest gazetted officer of any of the departments mentioned in Section 42 or the nearest magistrate on one hand and on the other it casts an obligation of mandatory nature on the officer concerned to inform the suspect/accused that if he so requires he would be taken to the nearest magistrate or the nearest gazetted officer of any of the departments mentioned in Section 42 of the Act for the search being made in presence of such gazetted officer or magistrate, as the case may be. The aforesaid twin requirements of Section 50 have been held to be mandatory by the Apex Court - See State of Punjab v. Balbir Singh (supra); Ali Mustafa Abdul Rahman Moosa v. State of Kerala, 1994 (6) JT 326 : (1994 AIR SCW 4393); State of Punjab v. Jasbir Singh, 1995 (9) JT SC 308; Himachal Pradesh v. Pirthi Chand, 1996 (9) JT (SC) 411 : (1996 AIR SCW 422); and State of Punjab v. Labh Singh, 1996 (6) JT (SC) 598 : (1996 AIR SCW 3444 ). In all these cases it has been held by the Supreme Court that Section 50 confers a valuable right on the person to be searched in presence of a gazetted officer or magistrate if he so requires, which right necessarily implies a right to be informed of such right. Effect of illegal search : ( 10 ) IN State of Himachal Pradesh v. Prithi Chand (1996) 2 SCC 37 : 1996 (9) JT (SC) 411 : (1996 AIR SCW 422) it has been held that illegality committed in investigation does not render the evidence obtained during that investigation inadmissible and in spite of illegal search, property seized on the basis of the said search would still form basis for further investigation and prosecution against the accused. The Apex Court has ruled that the manner in which the contraband is discovered may affect the factum of discovery but if the factum of discovery is otherwise proved then the manner becomes immaterial. The Apex Court has ruled that the manner in which the contraband is discovered may affect the factum of discovery but if the factum of discovery is otherwise proved then the manner becomes immaterial. Same view has been taken in State of Punjab v. Jasbir Singh (1996) 1 SCC 288 , as would be evident from the following observations made therein :"however, the evidence collected in breach of mandatory requirement does not become inadmissible. It is settled law that evidence collected during investigation in violation of the statutory provisions does not become inadmissible and the trial on the basis thereof does not get vitiated. Each case is to be considered on its own backdrop. " ( 11 ) IN State of Punjab v. Labh Singh, the Supreme Court noticed its earlier decisions in State of Punjab v. Balbir Singh; State of Punjab v. Jasbir Singh, and State of Himachal Pradesh v. Pirthi Chand (supra), and reiterated the view that any evidence recorded and recovered in violation of the search and the contraband seized in violation of the mandatory requirement does not ipso facto invalidate the trial. The Apex Court, however, held as under :"each case should be considered in the light of the facts and circumstances, in which the contraband was seized, viz. the time when the search was conducted, the place where it was seized, whether police had prior information of the contraband being in transport or place of concealment, whether there was proper opportunity to the police to secure the presence of a Gazetted Officer; whether the delay in search and seizure would result in the escape of the accused from arrest or contraband would be destroyed or whisked away and host of all relevant attendant circumstances. Each case depends upon its own factual scenario and no exhaustive or mathematical formula of universal application can be laid down. The court has to consider each case on its own setting. Each case depends upon its own factual scenario and no exhaustive or mathematical formula of universal application can be laid down. The court has to consider each case on its own setting. " ( 12 ) IN State of Punjab v. Jasbir Singh (supra) the Supreme Court declined to set aside the order of acquittal recorded by the Additional Sessions Judge who did not accept the evidence of the police officer on the ground that it was open to them at the time of search to take in writing from the accused that they had no objection to the search being conducted and that they were informed of their right but they waived their right to be searched in presence of a Gazetted Officer, as in the opinion of the Apex Court, the view expressed by the learned Additional Sessions Judge could not be said to be unwarranted. On the same ground the Apex Court declined to interfere with the order of acquittal in the case of State of Punjab v. Labh Singh. ( 13 ) IN Ali Mustafa Abdul Rahman Moosa (supra) it was sought to be urged before the Apex Court that the search and seizure of the contraband held in contravention of the provisions of Section 50 of the Act would not affect the conviction because the seized article could be used as "evidence" of unlawful possession of a contraband. Reliance for this submission was placed on Pooran Mal v. Director of Inspection, (1974) 1 SCC 345 : ( AIR 1974 SC 348 ). The Supreme Court repelled the submission in the following words :"the judgment in Pooran Mals case (supra) only lays down that the evidence collected as a result of illegal search or seizure, would be used as evidence in proceedings against that party under the Income-tax Act. That judgment cannot be interpreted to lay down that a contraband seized as a result of illegal search or seizure, can be used to fasten the liability of unlawful possession of the contraband on the person from whom the contraband has allegedly been seized in an illegal manner. "unlawful possession" of the contraband is the sine qua non for conviction under the NDPS Act and that factor has to be established by the prosecution beyond a reasonable doubt. "unlawful possession" of the contraband is the sine qua non for conviction under the NDPS Act and that factor has to be established by the prosecution beyond a reasonable doubt. Indeed the seized contraband is evidence but in the absence of proof of possession of the same, an accused cannot be held guilty under the NDPS Act. " ( 14 ) THE above decision is an authority on the proposition that "unlawful possession" of the contraband is the sine qua non for conviction under the Act but it cannot be so interpreted as to support the proposition that the evidence collected as a result of illegal search would not be relevant to prove seizure of the contraband from the suspect accused. In Pooran Mal it has been held that"where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out. "after considering Pooran Mal (supra) and other decisions on the point, the Supreme Court in State of Himachal Pradesh v. Prithi Chand (supra) has ruled as below (at page 980 of AIR) :"the evidence collected in a search in violation of law does not become inadmissible in evidence under the Evidence Act. The consequence would be that evidence discovered would be to prove unlawful possession of the contraband under the Act. It is founded in Panchanama to seize the contraband from the possession of the suspect/accused. Though the search may be illegal but the evidence collected i. e. Panchanama etc. , nonetheless would be admissible at the trial. At the stage of filing charge sheet it cannot be said that there is no evidence and the Magistrate or the Sessions Judge would be committing illegality to discharge the accused on the ground that Section 50 or other provisions have not been complied with. At the trial an opportunity would be available to the prosecution to prove that the search was conducted in accordance with law. Even if search is found to be in violation of law, what weight should be given to the evidence collected is yet another question to be gone into. At the trial an opportunity would be available to the prosecution to prove that the search was conducted in accordance with law. Even if search is found to be in violation of law, what weight should be given to the evidence collected is yet another question to be gone into. " ( 15 ) TRUE, possession of Charas, in the case of Ali Mustafa (supra) was evidenced by recovery memo and yet the Supreme Court was pleased to observe that "in the absence of proof of possession of the same, an accused cannot be held guilty under the NDPS Act," but the said observation, in my opinion is not intended to lay down the proposition that the evidence collected, i. e. recovery memo/panchanama etc. in a search and seizure in violation of law, is inadmissible to prove possession of the contraband seized. In Pirthi Chand (supra) it has been clearly ruled that the evidence "founded in Panchanama to seize the contraband from the possession of the suspect/accused" would be admissible to prove "unlawful possession. " And once seizure of the contraband from the possession of the accused is proved by the prosecution, the burden would shift on the accused to account for the possession of the contraband "satisfactorily" failing which the presumption of guilt would arise "unless and until contrary is proved" as visualised by Section 54 of the Act. These vital questions whether the prosecution has been able to prove possession of the contraband and whether the accused has "satisfactorily" accounted for such possession as also the question whether mandatory provisions regarding search and seizure including those of Section 50 of the Act have been complied with, can be more appropriately gone over and decided at the trial and no definite opinion can be expressed at the stage of bail. All that the court is to do at the stage of bail is to satisfy itself that there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail. The word "grounds" within the meaning of Section 37 of the Act means "materials" including conclusions of facts deducible from the surrounding circumstances of a given case and the words "not guilty" used in the Section comprehended and means "not likely to be held guilty at the trial. The word "grounds" within the meaning of Section 37 of the Act means "materials" including conclusions of facts deducible from the surrounding circumstances of a given case and the words "not guilty" used in the Section comprehended and means "not likely to be held guilty at the trial. " The court has to satisfy itself, upon consideration of totality of the facts and circumstances of the case including illegality, if any, in search and seizure, as to the existence of the conditions precedent to grant of bail. ( 16 ) IN Lakshmi Shankar Gupta v. State, 1994 (2) EFR 553 it has been held by J. K. Mathur, J. speaking for self and D. K. Trivedi, J. that"where mandatory provisions of law relating to search have not been complied with, the Court should take the violation into account and considering it with any other set of circumstances existing in the case if it can conclude that there is material available as would detract from the accused being found guilty, on reasonable prognosis, and if it also finds no material to suggest that the accused is likely to repeat the offence, the rigour placed by S. 37 would stand resolved and the bail can be considered under the provisions of Code of Criminal Procedure, subject to the normal criteria determining the grant of bail. "learned Judge was further of the view that "illegality in search consequent to non compliance of the provisions of S. 50 (1) or S. 42 or S. 43 of the NDPS Act would vitiate the trial" as propounded by the Supreme Court in Balbir Singh (supra) cannot be followed in preference to the larger Bench decision of the Supreme Court considered therein. Brijesh Kumar, J. in a separate judgment has held that "where the mandatory provisions have been violated as a result of which trial vitiates, S. 37 of the NDPS Act ceases to have effect and remains no more relevant. " To this extent the learned Judge has differed from the view taken by J. K. Mathur, J. that "there is no escape from the conclusion that the grant of bail on any ground including non-observance of the statutory provisions in search, would still attract the application of provisions of S. 37 of the NDPS Act. " To this extent the learned Judge has differed from the view taken by J. K. Mathur, J. that "there is no escape from the conclusion that the grant of bail on any ground including non-observance of the statutory provisions in search, would still attract the application of provisions of S. 37 of the NDPS Act. " In my opinion, violation of the mandatory provisions regarding search and seizure, if established at the stage of bail, may be taken into account along with other materials including panchanama etc. , the facts and circumstances in which contraband was seized, the time when the search was conducted, the place where the contraband was seized and other circumstances pointed out by the Apex Court in State of Punjab v. Labh Singh (supra) as constituting grounds for belief whether the accused is guilty of the offence and whether he is likely to commit any offence while on bail as visualised in sub-clause (ii) of clause (b) of S. 37 (1) of the Act. It may be added by way of clarification that it is not the requirement of S. 50 of the Act nor has it been so propounded by the Supreme Court in Jasbir Singh and Labh Singh (supra) that in the absence of anything in writing given by the accused it cannot be proved that the search and seizure were made in due compliance with the requirements of S. 50 of the Act. It must not be forgotten that notwithstanding any written consent for search being made on spot, the accused can say that the consent so given was not free and voluntary. ( 17 ) CONSIDERING the principles discussed above, the circumstances under which the search, seizure and arrest were made, the quantity of the contraband seized, the time and place of arrest and seizure and the fact that the applicant was not previously involved in any case, I am of the view that he has made out a case for bail. ( 18 ) ACCORDINGLY let the applicant Zakir Hussain involved in case crime No. 107 of 1996 under Ss. 8/18/21 of the NDPS Act, police station Dildarnagar, District Ghazipur, be enlarged on bail on his executing personal bond of Rs. 20,000. 00 with two sureties each in the like amount to the satisfaction of the Chief Judicial Magistrate, Ghazipur. Petition allowed.