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2002 DIGILAW 132 (PNJ)

Bhola Singh Alias Bhola v. State Of Haryana

2002-01-30

R.C.KATHURIA

body2002
Judgment R.C.Kathuria, J. 1. Bhola Singh alias Bhola, petitioner seeks bail in case bearing FIR No. 92 dated 10.2.2001 registered under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) with Police Station, Sadar, Fatehabad. 2. On 10.2.2001, ASI Guriya Ram of C.I.A. Staff, Fatehabad, along with other police officials, was going in Government Jeep No. HR-22B-0337 driven by Nirmal Singh, Constable. When they reached about 2 Kms, west of Village Khumber, he noticed the accused taking out some bags from the heap of sticks. On suspicion, he went there and recovered two bags from his possession. Three other bags were also kept in the heap of sticks. After arranging the presence of Jiwan Singh, Naib Tehsildar, Fatehabad, the search proceedings were conducted at the spot. Each of the bags were found to contain 20 Kg. of poppy husk. 3. I have heard learned counsel for the petitioner and learned Assistant General, Haryana for the State. 4. Learned counsel representing the petitioner, while pressing for his bail, has urged several grounds. Firstly, it was contended by him that mandatory provisions of Sections 50, 52 and 57 of the Act have not been complied with during the recovery proceedings. Secondly, that the place of recovery is accessible to all and as such possession of the petitioner-accused over the bags is not substantiated on the face of record. Thirdly, that the prosecution has failed to indicate the manner in which the petitioner-accused had carried the bags to the place of recovery. Reliance was placed by him on the observations made in Balkar Singh v. State of Haryana, 2001(4) RCR(Criminal) 275, wherein search had been effected before the Naib Tehsildar, who was not a Magistrate and the secret information received was not reduced in writing and sent to the superior officer as required under Section 42 of the Act and for that reason benefit of bail was extended to the petitioner- accused. 5. Opposing the submissions made, it has been urged by learned State counsel that the State Government had issued a notification whereby Naib Tehsildar had been notified as a gazetted officer and also as an Executive Magistrate and for that reason pleas raised on behalf of the petitioner-accused are not of any help to him. Additionally, it was submitted by him that in this case recovery of 100 Kgs. Additionally, it was submitted by him that in this case recovery of 100 Kgs. of poppy husk was made from five bags which were found in possession of the accused and bar provided under Section 37 of the Act would apply to the facts of the present case. 6. Position of law in this regard is well settled. The Apex Court in Supdt., Narcotics Control Bureau, Chennai v. R. Paulsamy, 2001 Supreme Court Cases (Cri.) 648, wherein the respondent and his wife were prosecuted under Sections 8-C, 21, 27-A, 28 and 29 of the N.D.P.S. Act and Sections 193 and 120-B of the I.P.C., and the High Court had granted bail on the ground of non-compliance of the formalities of Sections 52 and 57 of the Act, had observed that having regard to provisions of Section 37 of the Act, it would be too early at the stage of bail to take into account and judge the matter regarding non- compliance with the formalities. It was further laid down that recording of findings in terms of Section 37 of the Act is a sine qua non for granting bail to the accused involved in commission of the offence under the Act. In this case reliance had been placed on the observations made in Union of India v. Ram Samujh and another, 1999 Supreme Court Cases (Cri.) 1522 : 1999(4) RCR(Crl.) 93 (SC). It is manifest that in the above mentioned case relied upon from the side of the accused, attention of the Court was not drawn to the law laid down in above three cases. It also needs to be noticed that substantial changes have been brought in the Act including the provisions of Section 37 of the Act by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001, which have been made applicable with effect from 2.10.2001. In terms of the notification dated 19.10.2001 of the Central Government, the recovery of 100 Kgs. of poppy husk being commercial quantity, the limitation prescribed under Section 37 of the Act cannot be ignored. It cannot be said that at this stage no case is made out against the accused merely because according to him the contravention of the provisions of Sections 50, 52 and 57 of the Act has been made in this case. It is premature to take into account the stand of the petitioner at this stage. 7. It cannot be said that at this stage no case is made out against the accused merely because according to him the contravention of the provisions of Sections 50, 52 and 57 of the Act has been made in this case. It is premature to take into account the stand of the petitioner at this stage. 7. For the aforesaid reasons, I find no justification to extend the benefit of bail to the petitioner-accused. Consequently, his application for bail is rejected.