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2023 DIGILAW 214 (UTT)

Sharafat v. State of Uttarakhand

2023-03-01

SHARAD KUMAR SHARMA

body2023
JUDGMENT : SHARAD KUMAR SHARMA, J. 1. This Bail Application has been attempted to be argued by the learned counsel for the applicant, as if it is an argument extended in a Criminal Appeal, after a judgment of conviction. That may not be the scope to argue the bail application, which is absolutely a discretionary remedy depending upon the facts and circumstances of the case and social seriousness and implications of the offence too. 2. The present applicant herein is an accused for committing of an offence which has been registered against him by way of the FIR No. 46 dated 26.02.2021, for his alleged involvement in commission of offence under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. The police team which had raided upon and had apprehended the present applicant at the time when he was waiting for another lady at Khushalpur, it was upon search being conducted upon him, it was found that the applicant was carrying a bag, which contained a contraband i.e. smack of about 356 gm. It is not in controversy, that the amount of contraband, which has been recovered from the applicant, was beyond the prescribed commercial quantity. So far as the provisions of the N.D.P.S. Act is concerned, where the contraband which has been recovered is bound to be beyond a commercial quantity, Section 37 of the Act, imposes a restriction that there has to be a very stringent view which has to be adopted by the Court for considering the bail application and rather, in fact, the various pronouncements have gone to an extent of laying down, that in fact the Courts should adopt a negative attitude towards the bail being granted to a person from whom the commercial quantity of the specified contraband has been recovered. 4. Learned counsel for the applicant argues the bail application from the prospective, that there happens to be an apparent violation and non compliance of Section 50 of the NDPS Act. 4. Learned counsel for the applicant argues the bail application from the prospective, that there happens to be an apparent violation and non compliance of Section 50 of the NDPS Act. As far as Section 50 of the NDPS Act is concerned, it only acknowledges and is laying down the parameters of conditions for search and seizure of a person where a person who is apprehended with an expected contraband to have been carried by him is to be made aware and made known of his rights as to whether he wants himself to be searched through a Gazetted Officer or a Magistrate. In the FIR in question, the FIR records the following: ^^vfHk;qDr 'kjkQr ds ikl vf/kd ek=k esa LeSd gksus ij /kkjk 50 ,uŒMhŒihŒ,lŒ ,DV esa fn;s x;s Áfo/kkuksa ls voxr djrs gq, crk;k fd vki viuh ryk'kh jktif=r vf/kdkjh@eftLVªsV ds lkeus fyok ldrs gks ftl ij vfHk;qDr us crk;k fd vki gh yksx ryk'kh ys ldrs gSaA eSa dgha ugha tkÅaxk ftl ij esjs dgs vuqlkj mŒfuŒ dqynhi iUr }kjk lgefr i= rS;kj fd;k x;k vfHk;qDr dh ryk'kh esa------------** 5. The extract, as laid down above shows that the recovery made from the applicant was beyond the commercial quantity and so far as the implications of Section 50 of the NDPS Act is concerned, it has been observed by the complainant, that the applicant was made aware of his rights provided under Section 50 of the Act, but he has made a statement that since the police officials have apprehended him, they can make a search upon him. 6. Learned counsel for the applicant has made reference to the judgment of Hon’ble Apex Court as reported in State of Punjab vs. Baldev Singh, 1999 (6) SCC 172 and particularly, he has referred to the contents of Para 32, which is extracted hereunder: “However, the question whether the provisions of Section 50 are mandatory or directory and if mandatory to what extent and the consequences of non-compliance with it does not strictly speaking arise in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched. Therefore, without expressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty on the Investigating Officer (empowered officer) to ensure that search of the concerned person (suspect) is conducted in the manner prescribed by Section 50, by intimating to the concerned person about the existence of his right, that if he so requires, he shall be searched before a Gazetted Officer or a Magistrate and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, would cause prejudice to an accused and render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during a search conducted in violation of the provisions of Section 50 of the Act. The omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable. The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a Gazetted Officer or a Magistrate, if he so requires, is sacrosanct and indefeasible it cannot be disregarded by the prosecution except at its own peril.” 7. If Para 32 which is extracted hereinabove if that itself is taken into consideration, it was dealing with the question as to whether the provisions of Section 50 of the NDPS Act are mandatory or directory in nature and if mandatory, then upto what extent and what would be the consequences of its non-compliance, would have from the view point of protecting the rights of an accused person, who was apprehended, and the search was conducted upon him. 8. 8. The Hon’ble Apex Court, in the said judgment of Baldev Singh (supra) has only answered the question that the provisions contained under Section 50 of the NDPS Act, is implicitly, imperative and obligatory and it is the duty casted upon the officers to ensure to search upon an accused person in a manner as it has been prescribed under Section 50 of the NDPS Act. But there would be a marginal exception which has to be carved out from the ratio laid down by the judgment in the matters of Baldev Singh (supra), that this was a case where the trial Court was ceased with the Criminal Appeal, as against the judgment of conviction, there is no argument extended by the learned counsel for the applicant from the perspective as to whether the test of scrutinisation Section 50 of the NDPS Act, on the basis of observation made in the FIR at the stage when the bail application is being considered is to be minutely and diligently scrutinized, whether the impact of Section 50 of the NDPS Act, and the manner upto what extent the same has been complied with or not could be a subject matter, which could mandatorily required to be ventured by the Court, dealing with the bail application particularly when it requires dealing of evidence. Hence, the arguments extended in the context of Para 32 of Baldev Singh (supra), is altogether a distinct in nature under different circumstances pertaining to the aspect about the provisions being obligatory or directory in nature. 9. Learned counsel for the applicant has made reference to yet another judgment as reported in State of Rajasthan vs. Parmanand and Another, 2014 (5) SCC 345 and particularly, he has drawn the attention of this Court to the contents of Para 15, wherein it was observed that merely if a bag is being carried by a person and if he is searched upon, the search has to be in accordance with Section 50 of the NDPS Act. Relevant Para number 15 relied by the applicant is extracted hereunder: “15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No. 1 Parmanand’s bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No. 2 Surajmal was also conducted. Therefore, in the light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application.” 10. The said provision will have no application, but if the bag is carried by him and is searched separately in which contraband is found and his person is also searched separately, then Section 50 of the NDPS Act, would only had its application when person is searched. This is not the circumstances prevailing in the instant FIR, coupled with the fact that this judgment laid down by the Hon’ble Apex Court was yet again emanating from the judgment of conviction which was rendered after conducting a trial and appreciation of evidence. 11. The Punjab and Haryana High Court, in the case of Sukhdev Singh vs. Union Territory of Chandigargh, on a simpliciter reading it with regard to the embargo created by sub Clause (b) of sub-section (1) of Section 37 has observed that the Courts while dealing with the bail application in relation to those cases of the NDPS, where the contraband recovered is admittedly found to be more than the commercial quantity, the Court is bound to adopt a negative attitude and no bail has to be granted where the recovery of the contraband is beyond the commercial quantity being a social menace. 12. The Hon’ble Apex Court, in yet another judgment rendered in Criminal Appeal No. 152 of 2013, as decided on 29.10.2020 in Tofan Singh vs. State of Tamil Nadu, it has observed that Section 37(1) in relation to the offences under the NDPS Act, it contemplates a stringent condition which has to be attracted for the purposes of consideration of bail application. In fact, it has laid down that notwithstanding any provisions contained under the Code of Criminal Procedure, no bail is to be granted in relation to those cases of the NDPS Act, where the recovery of the contraband is beyond the commercial quantity. The relevant Para 43 of the said judgment is extracted hereunder: 43. Section 37(1) makes all offences under the Act cognizable and non-bailable, with stringent conditions for bail attached: 37. Offences to be cognizable and non-bailable: (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974): (a) every offence punishable under this Act shall be cognizable. (b) no person Accused of an offence punishable for offences Under Section 19 or Section 24 or Section 27A and also for offences involving commercial quantity 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. (ii) where the Public Prosecutor opposes the application, 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. (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 (2 of 1974) or any other law for the time being in force on granting of bail. 13. The argument as extended by the learned counsel for the applicant while pressing the bail application, that as to in those cases where the recovery of the contraband is beyond the commercial quantity, what implications would the provisions contained under Section 50 of the NDPS Act, would have at the stage, when the bail application is being considered. The said principle was considered by the Hon’ble Allahabad High Court and in a judgment reported in Nathooni Singh and Others vs. State of U.P. 1993 SCC Online All. The said principle was considered by the Hon’ble Allahabad High Court and in a judgment reported in Nathooni Singh and Others vs. State of U.P. 1993 SCC Online All. 72 it has been observed that in accordance with the view expressed by the Hon’ble Apex Court in State of Maharashtra vs. Natwar Lal Damodar Soni, AIR 1980 SC 593 and Shyam Lal vs. State of Madhya Pradesh, 1972 (9) ACC 219 (SC), the Hon’ble Apex Court has also observed that the provisions contained Section 37 of the NDPS Act makes no exception, hence even if the procedure prescribed under Section 42 and 50 of NDPS Act, has not been followed, while considering the bail, by still the provisions of Section 37 of the NDPS Act, will have to be borne in mind even at the stage when the matter is being considered for bail. Hence, if no other consequence ensues the consequence of presumption of prejudice can also not ensue. It would, thus, be seen that in every case where the provisions of Sections 42 and 50 of NDPS Act have not been followed, there will not be an automatic presumption of prejudice, and each case has to be assessed on its own facts and merits, the recovery or the evidence collected against the accused of recovery of contraband beyond commercial quantity, would be sufficient to be assessed by the Court for the purposes of considering the bail application. 14. For the aforesaid reasons, this Court doesn’t find the present case to be a fit case where the bail could be granted. Bail Application, thus preferred by the present applicant deserves to be rejected and the same is hereby rejected.