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2014 DIGILAW 909 (CAL)

In Re: Sahedul Mahaldar v. .

2014-09-18

PRANAB KUMAR CHATTOPADHYAY, SUDIP AHLUWALIA

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JUDGMENT : The petitioner is seeking bail in connection with a case relating to offences punishable under Section 21 (C) of the Narcotic Drugs and Psychotropic Substances Act and Section 379/411 of the Indian Penal Code. 2. The learned advocate of the petitioner submits that the petitioner is in custody for last 270 days and the charge-sheet has already been submitted. The learned advocate of the petitioner further submits that total 257 grams of heroine in a bag has been allegedly seized from the possession of the petitioner. The learned advocate of the petitioner further submits that the alleged seizure was made in the presence of Circle Inspector of Police of the local area which is a breach of Section 50 (1) of the N. D. P. S. Act, 1985. The learned advocate of the petitioner relies on a decision of the Hon’ble Supreme Court in the case of State of Rajasthan v. Parmanand & Anr., reported in (2014) 2 C. Cr LR (SC) 319 (paragraph 19) : (AIR 2014 SC 1384, para 15) and submits that the accused should have been taken to the nearest Magistrate or the nearest Gazetted Officer so that the search could be made in presence of an independent officer. The relevant extracts from the aforesaid decision are set out hereunder : '19. ..................... The idea behind taking an accused to the nearest Magistrate or the nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer.' 3. The learned advocate of the State submits that the concerned Circle Inspector or police officer is a Gazetted Officer in whose presence search was conducted and the said police officer should also be taken as an independent officer. 4. We are unable to accept the aforesaid submissions of the learned advocate for the State. 5. The learned advocate for the State further submits that the prayer for bail of the petitioner was earlier rejected by this Court. 6. The learned advocate of the petitioner, however, submits that after a lapse of five months, the petitioner has filed the present application in order to renew the prayer for bail since the trial has not yet commenced. 7. The Hon’ble Supreme Court has specifically held in the case of State of Rajasthan v. Parmanand & Anr. 6. The learned advocate of the petitioner, however, submits that after a lapse of five months, the petitioner has filed the present application in order to renew the prayer for bail since the trial has not yet commenced. 7. The Hon’ble Supreme Court has specifically held in the case of State of Rajasthan v. Parmanand & Anr. (AIR 2014 SC 1384) (supra) that the accused should be taken to the nearest Magistrate or the nearest Gazetted Officer in order to give the said accused a chance of being searched in the presence of an independent officer. 8. In the present case, it is not in dispute that the search was not conducted in the presence of a Magistrate or any other Gazetted Officer apart from a police officer. 9. Furthermore, it has been submitted by the learned advocate of the petitioner that in the present case, investigation is complete and charge-sheet has been submitted although the trial has not yet commenced. 10. Having considered the materials in the case diary and also considering the fact that the contraband article allegedly seized in a bag is just above commercial limit and considering the principles of law laid down by the Hon’ble Supreme Court in the case of State of Rajasthan v. Parmanand & Anr. (AIR 2014 SC 1384) (supra) and also considering the fact that the charge-sheet has already been submitted and the petitioner is in custody for the last 270 days and trial has not yet commenced, we are of the opinion that further detention of the accused/petitioner is not necessary. 11. Therefore, the accused/petitioner, namely, Sahedul Mahaldar be released on bail upon furnishing a bond of Rs. 10,000/- (Rupees Ten Thousand) with two sureties of like amount, one of whom must be local, to the satisfaction of the learned Judge, Special Court, under the NDPS Act, Berhampore. 12. This application for bail is, thus, disposed of.