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2002 DIGILAW 606 (PNJ)

Simarjit Kaur @ Simar Kaur v. State Of Punjab

2002-05-29

R.C.KATHURIA

body2002
Judgment R.C.Kathuria, J. 1. The petitioner-accused seeks bail in case bearing FIR No. 117 of 2001 dated 25.9.2001 registered under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act) with Police Station, Jhabhal, Tarn Taran, District Amritsar. 2. On 25.9.2001, Sub-Inspector Hardev Singh S.H.O. Police Station, Jhabhal alongwith other police officials was present near Baba Budha Sahib Bir College in connection with checking. He received secret information that one lady of fair complexion having height 52" used to come on every Tuesday for selling smack to the students of Baba Budha Sahib Bir College and since it was Tuesday on that day she would come for the said purpose. Finding this information credible, he associated Inderjit Singh, resident of Bhkhiwind Road, Jhabhal. In the meantime, they noticed petitioner-accused coming from the gate of Baba Budha Sahib College. On suspicion she was stopped. The Investigating Officer informed the accused that he had suspicion that she was carrying intoxicants in her possession. Thereafter he secured the presence of Amrit Singh, Deputy Superintendent of Police, Sub Division, Tarn Taran and also S.P.O. Beant Kaur and S.P.O. Maninder Jit Kaur. In the present of D.S.P. Amrit Singh search of the accused was conducted by S.P.O. Beant Kaur as he had agreed to be searched by her which led to the recovery of 400 grams of smack from the black purse which she had put on her right shoulder. 10 Grams of smack was separated as sample and put in a plastic tin. The seizure memo was prepared and recovery proceedings was completed at the spot. Necessary information was sent to the Police Station for registration of the case. 3. Counsel representing the petitioner, while pressing for her bail has made manifold submissions before me. Firstly, that the Investigating Officer has committed violation of Sections 42, 50 and 52-A of the Act. Secondly, that seal after completion of the recovery proceedings was not handed over to the independent witness who had been associated by the Police party. Thirdly, that in terms of the requirement of Standing Order 1.5 of the instructions issued by the Narcotic Control Bureau, New Delhi bearing Memo No. 1/88 dated 15.3.1988 two samples of the recovered smack were required to be drawn but only one sample had been drawn and thus violation of the guide-lines had been committed by the Investigating Officer. Thirdly, that in terms of the requirement of Standing Order 1.5 of the instructions issued by the Narcotic Control Bureau, New Delhi bearing Memo No. 1/88 dated 15.3.1988 two samples of the recovered smack were required to be drawn but only one sample had been drawn and thus violation of the guide-lines had been committed by the Investigating Officer. Lastly, that with regard to the false implication of the petitioner-accused, a telegram was sent by Baljit Singh, brother-in-law of the petitioner to the authorities. In support of the stand taken, reliance was placed by him in Balbir Singh v. State of Orissa, 1995 Criminal Law Journal 1762; Subash Suna v. The State, 1997 Cr.L.J. 1324; Munnanai v. State, 1998(1) All India Criminal Law Reporter 194; Chhabil Das v. State of Haryana, 1998(1) RCR(Crl.) 133 : 1998(2) All India Criminal Law Reporter 78; Khet Singh v. Union of India, 2002(2) RCR(Crl.) 277 : JT 2002(3) SC 208 and Beckodan Abdul Rahiman v. State of Kerala, 2002(2) RCR(Crl.) 385 (SC) : JT 2002(4) SCC 68. 4. Opposing the submissions made, it has been strenuously urged by the State counsel that as the recovery was made from the purse carried by the accused, the provisions of Section 42 of the Act as such would not be attracted. Rather, the recovery in question would be covered by the ambit of Section 43 of the Act and no such information was required to be sent in writing by the Investigating Officer before effecting the recovery because of the marked difference in the provisions contained in Sections 42 and 43 of the Act because Section 42 relates to the information being received is linked up with the keeping and selling of a narcotic or psychotropic substance in any building, conveyance or enclosed place between sun set and sun rise and the present recovery was effected at 3.00 p.m. Additionally, it was submitted by him that compliance of Section 50 of the Act has been done in this case and non-handing over the seal to the independent witness after use, who was present at the time of recovery, would not be a ground to claim bail because this contention relates to the appreciation of evidence which has to be adduced on record during the trial of the case. Regarding the non-drawing of two samples of smack at the spot of recovery, it was contended that per se is no ground to vitiate the trial because the petitioner has yet to show as to what prejudice has resulted to her on that account and for that reason it would not give her any right to overcome the mandatory provisions of Section 37 of the Act. Reliance was also placed by him on the case in Superintendent, Narcotics Control Bureau, Chennai v. R. Paulsamy, 2001 S.C.C. (Crl.) 648 and State of Madhya Pradesh v. Kajad, 2001(4) RCR(Crl.) 219. 5. The position of law with regard to grant of bail has been well settled by the Apex Court in Superintendent, Narcotics Control Bureau, Channai v. R. Paulsamy (supra) 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 State of Madhya Pradesh v. Kajad, 2001(4) RCR (Crl.) 219 (supra), 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. 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 of more, shall generally be not released on bail. Negation of bail is the rule and its grant an exception under sub-clause (ii) of clause (b) of Section 37(1). Negation of bail is the rule and its grant an exception under sub-clause (ii) of clause (b) of Section 37(1). 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 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. It deserves to be noticed that substantial changes have been brought by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001, including in the provisions of Section 37, which have been made applicable with effect from 2.10.2001. As per notification dated 19.10.2001 issued by the Central Government, the recovery of 400 grams of smack being a commercial quantity the rigours of provisions of Section 37 of the Act cannot be ignored at this stage solely on the ground of non-compliance of provisions of Sections 50 and 52-A of the Act and for not handing over the seal after use to the independent witness present at the time of recovery as it would be premature to do so at the stage of bail. 8. Coming to the other submissions made, no doubt in Shingara Singh v. State of Punjab, 2000(1) RCR(Criminal) 6, the benefit of bail was granted to the accused because it was found that on receipt of the secret information the same was not reduced into writing and sent to the superior officer. In Chhabil Das v. State of Haryana (supra), as two samples were not drawn from the recovered opium, it was taken as one of the grounds along with other grounds to record acquittal of the accused. In Munnanai v. State (supra), the sample sent for analysis was not taken in the presence of Magistrate and was not certified by him and for that reason search and seizure was held to be vitiated. 9. In Munnanai v. State (supra), the sample sent for analysis was not taken in the presence of Magistrate and was not certified by him and for that reason search and seizure was held to be vitiated. 9. The question whether the provisions are mandatory or the non-compliance has caused any prejudice to the accused has to be decided during the trial of the case and not at the stage of bail in view of the observations of the Apex Court in the above mentioned cases. 10. Coming to the non-compliance of the provisions of Section 42 of the Act as per stand taken on behalf of the petitioner, no doubt in Beckodan Abdul Rahiman v. State of Kerala (supra), it was observed that provisions of Sections 42 and 50 are mandatory and non-compliance of these provisions renders the investigation illegal. At the same time, in Sajan Abraham v. State of Kerala, 2001(3) RCR(Crl.) 808, the conviction was challenged before the Apex Court on the ground that mandatory provisions of Sections 42, 50 and 57 of the Act had been violated. While dealing with the question raised, it was observed that the submissions that violation of Section 42 of the Act had taken place, it was observed that "in construing such provisions strictly Court should not interpret it so literally so as to render its compliance, impossible. At the same time, it was observed that before drawing such an inference, it should be examined with caution and circumstance. "In other words, if in a case following the mandate strictly results in delay in trapping an accused, which may lead the accused to escape, then prosecution case should not be thrown out." 11. In the present case, the stand taken on behalf of the prosecution is that the recovery is embraced by the provisions of Section 43 of the Act and not Section 42 of the Act. This is not the stage to decide this question because it has to be decided after the parties are afforded opportunity to lead evidence in this regard. It is for that reason in Babua alias Tazmul Hossain v. State of Orissa, 2001(1) RCR(Crl.) 720 : 2001 SCC (Crl.) 351, it was laid down as under :- "The reasons given by the petitioner for claiming grant of bail become insignificant if one bears in mind the scope of Section 37(1)(b) of the Act. It is for that reason in Babua alias Tazmul Hossain v. State of Orissa, 2001(1) RCR(Crl.) 720 : 2001 SCC (Crl.) 351, it was laid down as under :- "The reasons given by the petitioner for claiming grant of bail become insignificant if one bears in mind the scope of Section 37(1)(b) of the Act. At this stage of the case all that could be seen was whether the statements made on behalf of the prosecution witnesses, if believable, would result in conviction of the petitioner or not. At this juncture, one cannot say that the accused is not guilty of the offence if the allegations made in the charge are established. Moreover, the evidence having not been completely adduced before the court one cannot say that there were no grounds to hold that he was not guilty of such an offence. Further, the liberty of a citizen has got to be balanced with the interest of the society. In cases where narcotic drugs and psychotropic substances are involved, the accused would indulge in activities which are lethal to the society. Therefore, it would certainly be in the interest of the society to keep such persons behind bars during the pendency of the proceedings before the court." 12. The above observations fully apply to the facts of the present case because the case is still at the stage of trial. 13. No doubt, in case Khet Singh v. Union of India (supra) to which reference has been made by the counsel for the petitioner, one of the questions agitated was that sample has not been drawn at the place of recovery and the procedure adopted was in violation of Clause 1.5 of the standing instructions No. 1/88 issued by the Narcotic Control Bureau, New Delhi, it was observed that these instructions are to be followed by the Officer Incharge of the investigation of crimes even though instructions do not have the force of law. After taking stock of the facts and case law in this regard, ultimately it was laid down that "even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence." 14. The above observations indicate that the plea raised on behalf of the petitioner-accused cannot be decided at the stage of bail. All these aspects have been taken into consideration for the adjudication of this bail application because it was so pointedly urged and pressed by the counsel for the petitioner. Taking into account the totality of circumstances on record, the limitation laid down in Section 37 of the Act cannot be ignored. At this stage it cannot be said that no case at all is made out against the petitioner-accused. Consequently, her bail application is rejected.