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1999 DIGILAW 696 (RAJ)

Kishan Lal v. Central Bureau of Narcotics

1999-05-17

D.C.DALELA

body1999
JUDGMENT 1. - This is a bail application under section 439, Cr. P.C. and the accusation against the accused-applicant, is for the offence under Section 8/21 of the Narcotic Drugs And Psychotropic Substances Act, 1985 (hereinafter called, "the Act"). 2. I have heard the arguments of both the sides. 3. In this case, a printed notice under Section 50 of the Act, has been given to the accused-applicant, asking him as to whether he would like the search to be effected in the presence of any Magistrate or Gazetted Officer. But, in the memo of search and recovery, it had been mentioned that the accused-applicant was asked under Section 50 of the Act as to whether he wants the search to be effected before a Magistrate or before the Gazetted Officer, Shri M.C. Vijay, who is the member of the search/raiding party. 4. Thus, it seems that the accused-applicant was in fact, asked under Section 50 of the Act as to whether he wants to be searched before a Magistrate or before a Gazetted Officer, who happened to be a member of the search/raiding party. 5. Evidently, the accused-applicant was given the option under Section 50 of the Act, with regard to search, before a Magistrate only. Giving option of search before a Gazetted Officer, accompanying the search-party, is not proper compliance of Section 50. Option of search before an independent Gazetted Officer was not afforded to the accused-applicant. 6. In the case of Nadeem v. State of Rajasthan, 1998 (2) EFR 632 it has been held by this Court that the Gazetted Officer or the Magistrate, referred to in Section 50 of the Act, is not the Gazetted Officer or the Magistrate, who is accompanying the search/raiding party. The Gazetted Officer or the Magistrate, mentioned in Section 50, should be one, who is not the member of the search/raiding party. 7. The learned Advocate for the prosecution, has contended that even if it is taken that Section 50 of the Narcotic Drugs And Psychotropic Substances Act has not been complied with by the officer taking the search, it is not obligatory on the part of the officer to inform the person to be searched, of his right under Section 50 of the Narcotic Drugs And Psychotropic Substances Act. To support his argument, he has relied upon a decision of the Kerala High Court, reported in V. Muhammed Basheer v. State of Kerala, 1995 (1) CCR 591 .But, in the case of Saiyad Mohd. Saiyad Umar Saiyad and others v. State of Gujarat, 1995 (3) SCC 610 a three Judges Bench of Hon'ble The Supreme Court has held that it is taken to be an imperative requirement on the part of the officer, intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate and that the provisions of Section 50 are mandatory. Hon'ble The Supreme Court has observed as under: ".......having regard to the grave consequences that may entail the possession of illicit articles under the Narcotic Drugs And Psychotropic Substances Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable, the Legislature has enacted the safeguard contained in Section 50. To obviate any doubt as to the possession by the accused of illicit articles under the Narcotic Drugs And Psychotropic Substances Act, the accused is authorised to require the search for such possession to be conducted in the presence of a Gazetted Officer or a Magistrate. We endorse the finding in Balbir Singh's case, (1992) 2 SCC 299 that the provisions in this behalf are mandatory and the language thereof obliges the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate. We endorse the finding in Balbir Singh's case, (1992) 2 SCC 299 that the provisions in this behalf are mandatory and the language thereof obliges the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate. Having regard to the object for which the provisions of Section 50 have been introduced into the Narcotic Drugs And Psychotropic Substances Act and when the language thereof obliges the officer concerned to inform the person to be searched, of his right to be searched in the presence of a Gazetted Officer or a Magistrate, there is no room for drawing a presumption under Section 114, Illustration (e) of the Indian Evidence Act, 1872 .....Very relevant in this behalf is the testimony of the Officer conducting the search that he had informed the person to be searched that he was entitled to demand that the search be carried out in the presence of a Gazetted Officer or a Magistrate and that the person had not chosen to so demand. If no evidence to this effect is given the court must assume that the person to be searched was not informed of the protection the law gave him and must find that the possession of illicit articles under the Narcotic Drugs And Psychotropic Substances Act was not established." 8. In view of this decision of Hon'ble The Supreme Court, the contention of the learned counsel appearing for the prosecution that it is not obligatory on the part of the officer, to inform the person to be searched, of his right under Section 50 of the Act, is not tenable. 9. In view of this decision of Hon'ble The Supreme Court, the contention of the learned counsel appearing for the prosecution that it is not obligatory on the part of the officer, to inform the person to be searched, of his right under Section 50 of the Act, is not tenable. 9. The next contention of the learned counsel, appearing for the prosecution, is that the recovery is by chance, and as such, Section 50 of the Act is not required to be complied with, in view of the decision of Hon'ble The Supreme Court in the case of State of Punjab v. Balbir Singh, 1994 (31) ACC 351 (SC) wherein, Hon'ble two Judges Bench of the Supreme Court, has laid down as under: "If a police officer without any prior information as contemplated under the provisions of the Narcotic Drugs And Psychotropic Substances Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Cr.P.C. and when such search is completed at that stage Section 50 of the Narcotic Drugs And Psychotropic Substances Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the Narcotic Drugs And Psychotropic Substances Act. If he happens to be an empowered officer also, then from that stage onwards, he would carry out the investigation in accordance with the other provisions of the Narcotic Drugs And Psychotropic Substances Act." 10. If he happens to be an empowered officer also, then from that stage onwards, he would carry out the investigation in accordance with the other provisions of the Narcotic Drugs And Psychotropic Substances Act." 10. But, The Hon'ble three Judges Bench of the Supreme Court, in the case of Mohinder Kumar v. The State, Panaji, Goa, AIR 1995 SC 1157 while considering the above quoted part of decision of Balbir Singh's case (supra), has held that where the police officer, without any prior information purely accidentally stumbled upon the offending articles, "from the stage he had reason to believe that the accused persons were in custody of narcotic drugs, he was under an obligation to proceed further in the matter, in accordance with the provisions of the Act" and after noting, inter alia, the noncompliance of Section 50 of the Act, directed the acquittal, setting aside the conviction. Evidently, therefore, even in a case of accidental recovery, the provisions of Section 50 are required to be complied with, and the contention of the learned counsel for the prosecution is not tenable. 11. The learned counsel, appearing for the prosecution, then contended that in this case, the officer of the Narcotic Department has recorded the statement of the accused-applicant, wherein, he has admitted the alleged crime. According to him, the officer of the Narcotic Department, is not a police officer, and as such, the statement of the accused-applicant, recorded by him, is not hit by the provisions of Section 25 of the Evidence Act. 12. But, a perusal of the statement of the accused-applicant, recorded by the officer of the Narcotic Department, would show that he had mentioned of the factum of his arrest, in the statement. He has also mentioned the factum of search, seizure etc. in the statement. This goes to indicate that the statement of the accused-applicant has been recorded after his arrest, search and recovery. 13. In the case of Kingsley and another v. State of Rajasthan, 1996 (3) Crimes 370 (Raj) it has been held by this Court that if the statement of the accused has been recorded by the Investigating Officer, after his arrest, the statement cannot be read against him because of the bar created by Article 20 (3) of the Constitution of India. 14. 14. In the case of R.B. Shah and another v. D.K. Guha and others, AIR 1973 SC 1196 Hon'ble The Supreme Court has held that statement recorded under the Foreign Exchange Regulation Act, after the person was made accused, was hit by Article 20 (3) of the Constitution of India. Evidently, on the same analogy, in the present case in hand, the statement of the accused-applicant, recorded by the officer of the Narcotic Department, after the accused-applicant has been arrested, is hit by Article 20 (3) of the Constitution of India, and as such, it cannot be read against him. 15. Having regard to the overall facts and circumstances of the case and considering the above arguments advanced by both the sides and without expressing any opinion on the merits of the case, I am of the opinion that it is a fit case, where, the benefit of bail should be extended to the accused-applicant.Accordingly, the bail application under section 439, Cr. P.C., is allowed and it is ordered that the accused-applicant, Kishan Lal s/o Laxman, involved in FIR No. 3/98, of Police Station Narcotic Department, Jhalawar, be released on bail, if he furnishes two surety bonds for Rs. 10,000/- each and a personal bond for Rs. 20,000/- to the satisfaction of the learned trial court. *******