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2000 DIGILAW 697 (MAD)

Shanthi v. Inspector of Police NIB CID Chennai

2000-07-19

D.MURUGESAN

body2000
Judgment : 1. This petition has been filed for the grant of bail as the petitioner was arrested on 22.7.99 for allegedly found in possession of 500 grams of heroin for the alleged offence under section 8 (c) read with 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. The learned counsel for the petitioner submitted that as per Section 52 (2) of the Narcotic Drugs and Psychotropic Substances Act, the article seized has not been forwarded to the Magistrate. In support of the said submission the learned counsel for the petitioner relied upon the letter of the Judicial Magistrate, Tambaram addressed to the Special Judge N.D.P.S. Cases, Chennai in D.No.2413 dated 26.7.99 wherein it has been stated as follows:- “The property in this case have not been received by this Court and Inspector of Police, NIBCID, Chennai-2 has been asked to produce them before the Special Judge, NDPS Act cases on or before 6.8.1999.” 3. The learned counsel for the petitioner submitted that since admittedly, the properties seized from the petitioner have not been forwarded to the learned Magistrate, the procedure to be adopted by the respondent as contemplated-under Section 52 has not been followed and that provision being mandatory, the petitioner is entitled to the grant of bail. 4. In repudiating the above submission the learned Government Advocate based upon the counter affidavit submitted that on receipt of information on 22.7.99 the Inspector of Police, NIBCID, Chennai forwarded the information to the Deputy Superintendent of Police NIBCID, Chennai and thereafter rushed to the scene of occurrence along with other police officials and intercepted the petitioner with two other ‘accused namely Vanitha W./o Ganesan and Ganesan, S/o Ponnusamy at 16.30 hours on 22.7.99. The petitione r was found in possession of 500 grams of heroin and the other 2 persons were found in possession of 500 grams and 200 grams of heroin respectively and therefore a case was registered under section 8 (c) read with 21 of the Narcotic Drugs and Psychotropic Substances Act. The learned Government Advocate further submitted that the search was conducted by a female warder Alangaram of All Women Police Station, Thousand-Lights, Chennai. He also submitted that the accused were produced before the Judicial Magistrate, Tambaram along with seized Properties on 23.7.99. The learned Magistrate made an endorsement on the seized contraband on 23.7.99 along with endorsement in Form 95 and other documents. He also submitted that the accused were produced before the Judicial Magistrate, Tambaram along with seized Properties on 23.7.99. The learned Magistrate made an endorsement on the seized contraband on 23.7.99 along with endorsement in Form 95 and other documents. The learned Government Advocate further submitted that the petitioner Shanthi was convicted for 10 years R.I. and also was imposed a fine of Rs.1 lakh by the Additional Special Judge, NDPS Act, Chennai on 4.8.99 in C.C.No.134 of 1995 and there is yet another case against the petitioner which is pending trial before the Additional Special Judge, NDPS Act, Chennai in C.C, No.618 of 1995 for the alleged offence under Section 8 (c) read with 21 of the NDPS Act. 5. However the above submissions of the learned Government Advocate made on the basis of the counter affidavit were disputed by the learned counsel for the petitioner on the ground that the learned Magistrate himself in his letter, referred to above has stated that he has not received the properties in this case. Therefore the learned counsel for the petitioner submitted that the petitioner is entitled for the grant of bail for non compliance of the procedures to be adopted by the respondent under Section 52 (2) of the NDPS Act. 6. In order to appreciate the rival submissions it would be appropriate for me to first refer to certain important provisions of the Act, relating to the search, arrest, seizure and disposal of articles involved in the offence. As per Section 41 (1) of the Act a Metropolitan Magistrate or a Magistrate of the First class or any Magistrate of the Second Class specially empowered by the State Government in this behalf may issue warrant for arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed. Section 41 (2) empowers certain officers of gazetted rank of certain departments either to arrest any person or to search any building etc. Section 41 (2) empowers certain officers of gazetted rank of certain departments either to arrest any person or to search any building etc. in which he has reason to believe that such person has committed any offence punishable under Chapter IV or has reason to believe any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV is kept or concealed. 7. Section 50 of the Act stipulates conditions under which search of persons shall be conducted. The relevant section for the purpose of the present case is Section 52 of the Act which reads as follows:- “(1) Any officer arresting a person under Section 41, Section 42, Section 43 or Section 44 shall, as soon as may be, inform him of the grounds for such arrest. (2) Every person arrested and article seized under warrant issued under sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. (3) Every person arrested and article seized under sub-section (2) of Section 41, Section 42, Section 43 or Section 44 shall be forwarded without unnecessary delay to (a) the officer-in-charge of the nearest police station, or (b) the officer empowered under Section 53. (4) The authority or officer to whom any person or article is forwarded under sub-section (2) or subsection (3) ‘shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article.” 8. The above provision relied upon by the petitioner, stipulates that every person arrested and article seized under warrant issued under sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. Section 52 (3) of the Act stipulates that every person arrested and article seized under sub-section (2) of Section 41, Section 42, Section 43 or Section 44 shall be forwarded without unnecessary delay to (a) the officer-in-charge of the nearest police station or (b) the officer empowered under Section 53. Section 52 (4) also stipulates that the authority or officer to whom any person or article is forwarded under subsection (2) or sub-section (3) shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article. Section 52 (4) also stipulates that the authority or officer to whom any person or article is forwarded under subsection (2) or sub-section (3) shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article. On a combined reading of the above provisions would clearly indicate that only when a person is arrested and article seized under a warrant issued under Section 41 (1) of the Act shall be forwarded to the Magistrate who has issued the warrant without unnecessary delay and when a person is arrested and article is seized either under Section 41 (2) by an empowered officer or under Section 42, Section 43 or Section 44 shall be forwarded without unnecessary delay only to the officer-in-charge of the nearest police station or the officer empowered under Section 53. 9. In view of the submissions made, by the learned counsel for the petitioner that the articles seized by the respondent police by virtue of the powers conferred on him under Section 41 (2) of the Act have not been forwarded to the Magistrate, the mandatory provision contained in Section 52 (2) has been violated and therefore the petitioner is entitled to the grant of bail, the following 2 points arise for consideration:- (1) Whether the provisions of Section 52 (2) are applicable to the facts of the present case? and (2) Whether non-compliance of the provision of Section 52 (2) shall entitle the petitioner to seek for bail? 10. In so far as the first point is concerned, it is very clear that Section 52 (2) is applicable only in respect of arrest and seizure made by the officers by virtue of the authority of a warrant issued by the competent Magistrate under Section 41 (1). Admittedly in the case on hand, the petitioner was neither arrested nor the seizure was effected by the officer by virtue of the warrant issued to him by the Magistrate under Section 41 (1) of the Act. It is the case of the prosecution that the arrest and search were made pursuant to an information received by the Deputy Superintendent of Police, NIBCID, Chennai. The said arrest and the seizure is therefore only by virtue of the powers conferred on the said officer under Section 41 (2) of the Act. It is the case of the prosecution that the arrest and search were made pursuant to an information received by the Deputy Superintendent of Police, NIBCID, Chennai. The said arrest and the seizure is therefore only by virtue of the powers conferred on the said officer under Section 41 (2) of the Act. In such event the submission of the learned counsel for the petitioner that the articles were not produced before the Magistrate under Section 52(2) of the Act is unsustainable on the facts of this case and therefore I find that provision of Section 52 (2) are not applicable to the present case. 11. In view of my finding in respect of first point a decision on the second point in this case may not be necessary. However in view of the submissions made by the learned counsel that noncompliance of mandatory provision will automatically entitle the accused for grant of bail and in view of the said point is raised in most of the bail applications filed for the alleged offences under the various provisions of the N.D.P.S. Act, I propose to decide the said point also. The Apex Court in judgment reported in State of Punjab v. Balbir Singh, 1994 SCC (Crl) 634 after elaborately discussing the various provisions of the Act had finally concluded in paragraph 25 (6) and has laid down the following principle. “Provisions of Section 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 and by themselves are mandatory. If there is noncompliance or if there are lapses like delay etc., then the same has to be examined to see whether prejudice has been caused to the accused and such failure will have a bearing on appreciation of evidence regarding the arrest or seizure as well as the merits of the case.” 12. A careful consideration of the above judgment would clearly show that the non-compliance of provision 52 (2) or any lapses by delay by themselves are not mandatory and would by themselves will not vitiate the trial. A careful consideration of the above judgment would clearly show that the non-compliance of provision 52 (2) or any lapses by delay by themselves are not mandatory and would by themselves will not vitiate the trial. But such non-compliance or lapses like delay could be examined by the trial courts to find out as to whether any prejudice has been caused to the accused and such failure will have a bearing on appreciation of evidence regarding the evidence or seizure as well as the merit of the case. 13. On considering the above conclusions set out by the Apex Court it would be clear that an accused can plead the non-compliance of the mandatory provisions before the trial Courts to establish any prejudice caused to him and failure of such compliance will have a bearing on appreciating the evidence with regard to arrest or seizure. In my considered view the submissions of the learned, counsel for the petitioner that the non-compliance of Section 52 (2) will automatically entitle to the petitioner a grant of bail is unsustainable. More particularly so the non-compliance of the mandatory provisions under the N.D.P.S. Act may not be a ground for seeking bail by the petitioner in view of the restrictions conferred on the courts under the provisions of Section 37 of the N.D.P.S. Act which reads as follows:- “(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 - (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 a re 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.” In view of the above specific provision, the Court can consider the question of bail, when the Public Prosecutor opposes the’ bail application only when 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. When the Apex Court had concluded that the non-compliance of provisions under Section 52 by themselves are not mandatory and if there is non-compliance or if there are lapses like del ay etc., then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding the arrest or seizure as well as on merits of the case. It is needless to say a plea of noncompliance of the provisions of Section 52 (2) cannot be a ground to, satisfy this Court that there are reasonable grounds for believing that the petitioner is not guilty of such offence. 14. In this context it would be also relevant to note the conclusion arrived by the Apex Court in the “ Balbir Singh Case ” 1994 SCC (Crl) 634 referred supra at paragraph 25 (4-B) which reads as follows:- “If an empowered officer or an authorised officer under Section 41 (2) of the Act carries out a search, he would be doing so under the provisions of Cr.P.C. namely Sections 100 and 165 Cr.P.C. and if there is no strict compliance with the provisions of Cr.P.C. then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the Courts while appreciating the evidence in the facts and circumstances of each case.” The Apex Court has clearly laid down the principle that when the empowered officer or an authorised officer under Section 41 (2) of the Act carries out a search he would be doing so, under the provisions of Sections 100 and 165 of Cr.P.C. and if there is no strict compliance with the provisions of Cr.P.C. then such search would not per se be illegal and would not vitiate the trial. The Apex Court has also held that the effect of such failure, has to be borne in mind by the Courts while appreciating the evidence and circumstances of the case. In view of the categorical pronouncement of the Apex Court, this Court sitting to consider the bail application cannot go into the question of merits and demerits of the case and to appreciate the evidence and circumstances of the present case. Therefore the appreciation of evidence of facts and cir cumstances of the case can be referred to the trial Courts and not to this Court, when this Court” cannot go into the merits and demerits and to give a finding while considering the application for bail. 15. The only ground on which the bail application could be entertained is, when the petitioner satisfies the Court in respect of the ingredients mentioned in Section 37 (1) (b) (i) of the said Act. In this context it is further relevant to point out the pronouncement of the Supreme Court in the judgment reported in Union of India v. Ram Samujh and another, 1999 (2) MWN (Cr.) S.C. 353 wherein in paragraphs 6 & 7 of the said judgment the Apex Court has held as follows:- “It is to be borne in mind that the aforesaid Legislative mandate is required to be adhered and followed. It should be borne in mind that in murder case, accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death blow to number of innocent young victims, who are vulnerable; it causes deleterious effects and deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention “with regard to punishment under NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier V. Chief Secretary, Union Territory of Goa, 1990 (I) SCC 95 as under: With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country any illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportion in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in the wisdom has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine. To check the menace of dangerous drugs flooding the market, the Parliament has provided that the person accused in offences under the NDPS Act should not be released on bail during trial unless mandatory conditions provided in Section 37, namely: (i) there are reasonable grounds for believing that accused is not guilty or such offence, and (ii) that he is not likely to commit offence while on bail; are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent accused on bail. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent accused on bail. Instead of attempting to take a holistic view of the harmful socioeconomic” consequences and health hazards which would accompany trafficking illegally in the dangerous drugs, the Court should implement the law in the spirit with which “the Parliament, after due deliberation, has amended.” Accordingly the submission of the learned counsel that non-compliance of Section 52 (2) will automatically entitle to the accused to seek for bail is untenable and accordingly I reject the same. 16. It is to be noted that except by pleading non-compliance of the provisions of Section 52 (2), the learned counsel for the petitioner did not bring to my notice any prejudice that would be caused to the accused for failure on the part of the respondent to produce the contraband before the learned Magistrate. Further the Magistrate even though stated that the properties have not been received by the Court, but the Inspector of Police, NIBCID, Chennai have been asked to produce the properties before the Special Judge, NDPS Act, Chennai on or before 6.8.99. The fact remains that the properties were produced before the Special Court on 4.8.99 itself and in the absence of any prejudice having been pleaded by the petitioner either in the petition or in his submissions before this Court, I do not think that the contention of the learned counsel for the petitioner that the properties have not been produced before the Magistrate and therefore the petitioner is entitled to bail can be accepted. 17. Considering the above, I do not entertain the submissions of the learned counsel for the petitioner that the petitioner is entitled to the grant of bail on the above two points. Accordingly, the petition is dismissed.