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2002 DIGILAW 390 (PNJ)

Baljinder Singh v. State Of Punjab

2002-04-10

R.C.KATHURIA

body2002
Judgment R.C.Kathuria, J. 1. The petitioner-accused seeks bail in case bearing FIR No. 205 dated 27.5.2001 registered under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act) with Police Station, Patran, District Patiala. 2. On 27.5.2001 at 10.00 p.m. ASI Kuljit Singh of Police Station, Patran along H.C. Lal Chand, Constable Hardeep Singh, Constable Balwinder Singh, Constable Suresh Kumar, Midda Ram son of Kusala Ram, Village Banas, Police Station Gagga were present near Gaushala Patran on Patra - Jakhal road in connection with FIR No. 204 dated 26.5.2001 registered under Sections 279, 337, 338 and 427 of the Indian Penal Code with Police Station, Patran. When the Investigating Officer started searching ambassador car No. PB-11E-2421 involved in the accident, he found Baljinder Singh, petitioner-accused sitting on drivers seat of the car in drunken state. On further enquiry, the petitioner-accused had informed him that his companion Jaswant Singh had run away from the spot after the accident. Thereafter search of the car was conducted and three bags containing poppy husk were found in rear dicky. Presence of Ashwani Kumar, Deputy Superintendent of Police was secured and the bags lying in rear dicky of the car were searched. Each bag was found containing 30 kgs. of poppy husk. After sealing the sample taken out of it and the bags in question the recovery proceedings were completed at the spot. After completion of investigation, the case has been filed in Court. 3. Learned counsel representing the petitioner-accused, while pressing for his bail, has made manifold submissions before me. Firstly, that the recovery was made at 10.00 p.m. so to say after sunset and before sunrise without obtaining warrants in terms of the requirement of Section 42 of the Act which has vitiated the recovery. Reliance was placed on Roy V.D. v. State of Kerala, 2000(4) RCR(Crl.) 762. Secondly, that compliance of Section 50 of the Act has not been done because no option was given to the petitioner-accused before carrying out the search of the bags containing poppy husk alleged to have been recovered. Thirdly, no independent witnesses were associated despite ample opportunity available to the Investigating Officer to secure their presence starting seizure proceedings. Lastly, that Investigating Officer after making the recovery continued with the investigation of the case which is not warranted under the law. 4. Thirdly, no independent witnesses were associated despite ample opportunity available to the Investigating Officer to secure their presence starting seizure proceedings. Lastly, that Investigating Officer after making the recovery continued with the investigation of the case which is not warranted under the law. 4. Opposing the submissions made, it has been strenuously urged by the State counsel that the Investigating Officer had no prior information that the car in question, which had met with an accident, would be found containing poppy husk and if he had taken the recourse to obtain warrants of the petitioner- accused, the accused would have managed to escape because his companion had already slipped away from the spot soon after the accident. It was also urged by him that the case of the petitioner is fully within the ambit of provisions of Section 37 of the Act. 5. The position of law as to the grant of bail has been settled by the Apex Court in Supdt. Narcotics Control Bureau, Chennai v. R. Paulsamy, 2001 SCC (Crl.) 648 wherein the respondent and his wife were prosecuted under Sections 8-C, 21, 27-A, 28 and 29 of the Act and Sections 193 and 120-B of the Indian Penal Code. The High Court had granted bail on the ground of non-compliance of the formalities of Sections 52 and 57 of the Act but the Honble Supreme Court 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. 6. In case State of Madhya Pradesh v. Kajad, 2001(4) RCR(Crl.) 219, bail to the petitioner therein was earlier rejected by the High Court but subsequently it was allowed in violation of mandatory provisions of Section 37 of the Act and the same was set aside by the apex Court. It was observed as under :- "The purpose for which the Act was enacted and the menace of drug trafficking which intends to curtail is evident from its scheme. It was observed as under :- "The purpose for which the Act was enacted and the menace of drug trafficking which intends to curtail is evident from its scheme. A perusal of Section 37 of the Act leaves no doubt in the mind of the Court that a person accused of an offence, punishable for a term of imprisonment of five years or more, shall generally be not released on bail. Negation of bail is the rule and its grant and exception under sub-clause (ii) of clause (b) of Section 37(i). For granting the bail the Court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail. It has further to be noticed that the conditions for granting the bail, specified in clause (b) of sub-section (1) of the Section 37 are in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the Act is uncalled for." 7. During the pendency of these proceedings amendment has been made in the Act by Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 which has been made applicable with effect from 2.10.2001. In terms of notification dated 19.10.2001 issued by the Central Government recovery of 3 bags containing 30 kgs. of poppy husk each being a commercial quantity, the prayer for bail has to be considered in the light of the limitation laid down in Section 37 of the Act. The rigours of Section 37 of the Act cannot be ignored on the ground that there has been non-compliance of Sections 50 and 57 of the Act as was sought to be contended on behalf of the petitioner-accused. It would be premature to do so for the purpose of deciding the bail application. 8. The rigours of Section 37 of the Act cannot be ignored on the ground that there has been non-compliance of Sections 50 and 57 of the Act as was sought to be contended on behalf of the petitioner-accused. It would be premature to do so for the purpose of deciding the bail application. 8. Coming to the plea with regard to non-compliance of the provisions of Section 42 of the Act, it is apparent from the above narrated facts that during the course of investigation of the accident case, the Investigating Officer had a chance to search the dicky of car No. PB-11E-2421 which was found containing 3 bags of poppy husk. The proviso to Section 42 of the Act itself states that where the Police Officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. 9. In the present case the detailed facts have been stated in the report on the basis of which the case was registered. It cannot be the intention of the legislature that the procedure prescribed should be construed in such a manner that it should enable the accused to escape from the clutches of law. In case Sajan Abraham v. State of Kerala, 2001(3) RCR(Criminal) 808, while dealing with the submission that violation of Section 42 of the Act had taken place, it was observed that in construing any facts to find, whether prosecution has complied with the mandate of any provisions which is mandatory, one has to examine it with pragmatic approach. The law under the aforesaid Act being stringent to the persons involved in the field of illicit drug traffic and drug abuse, the legislature time and again has made some of its provisions obligatory for the prosecution to comply, which the Courts have interpreted it to be mandatory. This is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. The stringency is because of the type of crime involved under it, so that no such person escapes from the clutches of law. This is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. The stringency is because of the type of crime involved under it, so that no such person escapes from the clutches of law. The Court however while constructing such provisions strictly should not interpret it so literally so as to render its compliance, impossible. However, before drawing such an inference, it should be examined with caution and circumspection. In other words, if in a case, the following of mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then prosecution was should not be thrown out." 10. In view of the position explained above the observation made by the Apex Court in case Roy V.D. v. State of Kerala (supra) would not apply to the facts of the present case because in that case recovery was made by the Excise Officer who was not even an empowered officer, which is not the position in the present case. For the aforesaid reasons, there is no merit in the petition and the same is consequently dismissed. ORDER Judgment in this case was pronounced on 10.4.2002. Today it has been brought to my notice that inadvertently the date at the time of pronouncement has been mentioned as 11.4.2002 instead of 10.4.2002. This being an accidental error, it is directed that the date of order in this case shall be read as 10.4.2002 instead of 11.4.2002.