JUDGMENT Mr. Anoop Chitkara, J. - FIR No. Dated Police Station Sections 198 28.08.2022 City Kapurthala, District Kapurthala 21 (c) of NDPS Act, 1985 The petitioner incarcerated for violating the above-mentioned provisions of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) as per the FIR captioned above has come up before this Court under section 439 CrPC, 1973 seeking bail. 2. In paragraph 12 of the bail application, the accused declares the following criminal antecedents: Sr. No. FIR No. Date Offences Police Station 1. 219 30.08.2018 302, 201 and 120-B IPC City Kapurthala 3. The petitioner contends that the pre-trial incarceration would cause an irreversible injustice to the petitioner and family. 4. While opposing bail, the contention on behalf of the State is that the quantity of contraband involved in the case falls into the commercial category, and given the criminal past, the accused is likely to indulge in crime once released on bail. 5. While considering each bail petition of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with reasonableness because arbitrariness is the antithesis of law. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First Information Reports, wherein the bail petitioner stands arraigned as an accused. In reckoning the number of cases as criminal history, the prosecutions resulting in acquittal or discharge, or when Courts quashed the FIR; the prosecution stands withdrawn, or prosecution filed a closure report; cannot be included. Although crime is to be despised and not the criminal, yet for a recidivist, the contours of a playing field are marshy, and graver the criminal history, slushier the puddles. 6. Facts of the case are being extracted from reply dated 03.12.2023. Prosecution case is that on 28.08.2022, when the Investigator along with his police party were patrolling near Bridge Sassia Wali Pulli Kapurthala, then he noticed the petitioner along with a woman. On seeing the police party, both of them perplexed and started running towards the street, however, they were chased. In the meantime, the lady threw a polythene bag in the open drain and the petitioner also took something out of his pocket and threw it. However, the police officials were able to nab both of them. On seeing the police party, both of them perplexed and started running towards the street, however, they were chased. In the meantime, the lady threw a polythene bag in the open drain and the petitioner also took something out of his pocket and threw it. However, the police officials were able to nab both of them. The male disclosed his name as Banti @ Laddu and the female disclosed her name as Seema Devi. On checking the articles thrown by them, one polythene bag contained 260 grams of Heroin and another polythene bag contained 40 grams of Heroin. 7. I have heard counsel for the parties. 8. Petitioner seeks bail on two grounds i.e. on medical as well as on merits. On medical grounds, the petitioner's stand is that he is suffering from various medical ailments. On 20.11.2023, this Court had asked the State to ascertain the medical condition of the petitioner and to procure the medical record from the concerned Jail. In the reply dated 03.12.2023, a medical certificate from Central Jail, Kapurthala has been annexed which reads as under:- " Office: Medical Officer, Central Jail, Kapurthala To The Superintendent Central Jail, Kapurthala. No: 6189 Date: 01.12.2023 Subject: Regarding Medical Report Bunty @ Laddu son of Harbans @ Bansi, PID- 305351, UT 34 yrs (Male) Respected Sir, As per record, Bunty @ Laddu son of Harbans @ Bansi, PID305351, UT 34 yrs (Male) is confined in this jail. On 14.09.2023, he was referred to medicine department at civil hospital Kapurthala for his HCV treatment as per court orders, where he was examined and managed accordingly. He was prescribed oral medications. On 01.12.2023, he was examined by Jail Medical Officer. He complained of pain in left limb. He was prescribed Oral Medications. His general condition is stable and his vitals are within normal limits. This is for your kind information. Sd/- Medical Officer, Central Jail, Kapurthala" 9. Perusal of the above said medical certificate explicitly states that the medical condition of the petitioner is stable and his vitals are normal, as such recovery of commercial quantity of Heroin from the petitioner cannot be let of on medical condition which is not critical nor there is any necessity of immediate medical care, in case of any emergency, the jail authorities can provide him necessary medical aid. As such, the first prayer is dismissed. 10. As such, the first prayer is dismissed. 10. The second prayer i.e. bail on merits, it was a case of chance recovery and when the petitioner along with the woman accompanied him noticed the police party, both of them became perplexed and started running and in between, both of them have thrown bags which contained 260 grams and 40 grams of Heroin. Since both of them have started running on seeing the police party, as such, prima facie it is not a case where it can be said that they had no knowledge about the contents carried by another person. Furthermore, simply because they have thrown the polythene bags would not disconnect them from the contraband for the reason that the police party had noticed both of them throwing the bags and the same were picked up from the place, as such there is prima facie evidence connecting the recovery from the petitioner. 11. Dealing with 260 grams of heroin makes an offence under NDPS Act in the following terms: Substance Name Heroin/ Chitta/ Smack Quantity detained 260 Gram Quantity type Commercial Drug Quantity in % to upper limit of Intermediate 104.00% Specified as small & Commercial in Section 2(viia) & 2(xxiiia) NDPS Act, 1985 Notification No S.O.1055(E) dated 10/19/2001 Sr. No. 56 Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) Heroin Other non-proprietary name ****** Chemical Name Diacetylmorphine Small Quantity 5 Gram Commercial Quantity 250 Gram Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 Notification No S.(xvi)(d) NDPS Act, 1985 (61 of 1985), S.O. 821 (E) dated 11/14/1985 Sr. No. 2(xvi)(d) Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) ****** Other non-proprietary name ****** Chemical Name 2(xvi)(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts; Explanation.-- For the purposes of clauses (v) (vi), (xv) and (xvi) the percentages in the case of liquid preparations shall be calculated on the basis that a preparation containing one per cent. of a substance means a preparation in which one gram of substance, if solid, or one millilitre of substance, if liquid, is contained in every one hundred millilitre of the preparation and so on in proportion for any greater or less percentage: Provided that the Central Government may, having regard to the developments in the field of methods of calculating percentages in liquid preparations prescribed, by rules, any other basis which it may deem appropriate for such calculation. 12. Thus, the quantity allegedly involved in this case is commercial. Given this, the rigours of Section 37 of the NDPS Act apply in the present case. The burden is on the petitioner to satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act. The petitioner has pre-trial incarceration of 08 months and 01 day, however, considering the fact that the contraband fell in commercial quantity, the custody of 08 months is too less and not entitled the petitioner on bail even on the ground of prolonged pre-trial incarceration. 13. The petition states that the accused is entitled to bail because of the non-examination of independent witnesses. However, this plea would gather force only when the accused establishes after cross-examination that the police deliberately did not associate any independent witness even when they could have been made available, and in the facts and circumstances peculiar to this case, the argument does not satisfy the requirements of section 37 of NDPS Act. In State of Punjab v. Baldev Singh, (1999) 6 SCC 172 , Constitutional bench of Hon'ble Supreme Court holds, [14]. The provisions of sections 100 and 165 Cr.P.C., 1973 are not inconsistent with the provisions of the NDPS Act and are applicable for effecting search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure comes across a person being in possession of the narcotic drugs or the psychotropic substance, then he must follow from that stage on wards the provisions of the NDPS Act and continue the investigation as provided thereunder. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure comes across a person being in possession of the narcotic drugs or the psychotropic substance, then he must follow from that stage on wards the provisions of the NDPS Act and continue the investigation as provided thereunder. If the investigating officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from the stage in accordance with the provisions of the NDPS Act. In Balbir Singh's case after referring to a number of judgments, the Bench opined that failure to comply with the provisions of Cr.P.C. in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view. 14. Counsel for the petitioner submits that the investigator conducted search and seizure violating sections 42 and 50 of the NDPS. 15. Whether the Investigator complied with the mandatory provisions of sections 42 and 50 of the NDPS Act is a question of fact to be adjudicated in the trial. However, before this court treats the compliance as illegal, the prosecution needs an opportunity to prove that they had complied with the mandatory provisions per law. Such stage would come only during the trial and certainly not at the bail stage, where it would be hit by the maxim Audi alteram partem. The exception to this would be applicable only when the non-compliance of the mandatory provisions of sections 42 and 50 of the NDPS Act is apparent on the face of the special report under section 57 of the NDPS Act and other documents of search and seizure, and in the opinion of the court, the lapse is non-rectifiable, after recording a finding that it is an incurable defect, the court might consider granting bail on such violations. 16. In State of H.P. v. Prithi Chand, (1996) 2 SCC 37 , Hon'ble Supreme Court holds, [3]. 16. In State of H.P. v. Prithi Chand, (1996) 2 SCC 37 , Hon'ble Supreme Court holds, [3]. The question is whether the learned Sessions Judge was justified, at the stage of taking cognisance of the offence, in discharging the accused, even before the trial was conducted on merits, on the ground that the provisions of Section 50 of the Act had not been complied with. This Court in State of Punjab v. Balbir Singh [ (1994)3 SCC 299 ] : AIR 1994 SCW 1802 has considered the provisions of the Act. Section 50 has been held to be mandatory. In paragraph 16, this Court has held that it is obligatory on the part of the empowered or the authorised officer to inform the suspect that, if so required, he would be produced before a Gazetted Officer or a Magistrate and search would be conducted in his presence. It was imperative on the part of the Officer to inform the person of the above right and if he failed to do the same, it amounted to violation of the requirement of Section 50 of the Act. It was held that when the person was searched he must have been aware of his right and that it could be done only if the authorised or empowered Officer informed him of the same. Accordingly, this Court by implication read the obligation on the part of authorised Officer to inform the person to be searched of his right to information that he could be searched in the presence of the Gazetted Officer or the Magistrate. In Saiyad Mohd. Saiyaad Umar Saiyed v. State of Gujarat [1995 (3) JT SC 489] a three-Judge Bench of this Court had reiterated the above view and held that having regard to the grave consequences that might entail the possession of illicit articles under the Act, viz., the shitting of the onus to the accused and the severe punishment to which he became liable, the Legislature had enacted safeguards contained in Section 50. Compliance of the safeguards in Section 50 is mandatory obliging the Officer concerned to inform the person to be searched of his right to demand that search could be conducted in the presence of a Gazetted Officer or a Magistrate. The possession of illicit article has to be satisfactorily established before the Court. Compliance of the safeguards in Section 50 is mandatory obliging the Officer concerned to inform the person to be searched of his right to demand that search could be conducted in the presence of a Gazetted Officer or a Magistrate. The possession of illicit article has to be satisfactorily established before the Court. The Officer who conducts search must state in his evidence that he had informed the accused of his right to demand, while he is searched, in the presence of a Gazetted Officer or a Magistrate and that the accused had not chosen to so demand. If no evidence to that effect is given, the Court must presume that the person searched was not informed of the protection the law gives him and must find that possession of illicit articles was not established. The presumption under Article 114, illustration (e) of the Evidence Act, that the official duty was properly performed, therefore, does not apply. It is the duty of the Court to carefully scrutinise the evidence and satisfy that the accused had been informed by the concerned Officer that he had a right to be searched before a Gazetted Officer or a Magistrate and that the person had not chosen to so demand. [4]. It is to be seen whether the accused has been afforded such a right and whether the authorised Officer has violated the mandatory requirement, as a question of fact, has to be proved at the trial. In Pooran Mal v. Director of Inspection [ (1974) 1 SCC 345 ] : AIR 1974 SC 348 a Constitution Bench of this Court had held that power of search and seizure, is, in any system of jurisprudence, an overriding power of the State for the protection of social security and that power is necessarily regulated by law. A search by itself is not a restriction on the right to hold and enjoy property, though seizure is a temporary restriction to the right of possession and enjoyment of the property seized. However, the seizure will be only temporary and limited for the purpose of the investigation. The power of search and seizure is an accepted norm is our criminal law envisaged in Sections 96 to 103 and 165 of the Criminal Procedure Code, 1973 [for short, "the Code"]. The Evidence Act permits relevancy as the only test of admissibility of evidence. However, the seizure will be only temporary and limited for the purpose of the investigation. The power of search and seizure is an accepted norm is our criminal law envisaged in Sections 96 to 103 and 165 of the Criminal Procedure Code, 1973 [for short, "the Code"]. The Evidence Act permits relevancy as the only test of admissibility of evidence. The evidence obtained under an illegal search and seizure does not exclude relevant evidence on that ground. It is wrong to invoke the spirit of Constitution to exclude such evidence. The decisions of the American Supreme Court spelling out certain Constitutional protections in regard to search and seizure are not applicable to exclude the evidence obtained on an illegal search. Courts in India refuse to exclude relevant evidence merely on the ground that it is obtained by illegal search and seizure. When the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search and seizure, is not liable to be shut out. Search and seizure are not a new weapon in the armoury of those whose duty it is to maintain social security in its broadest sense. If the safeguards are generally on the lines adopted by the Code, they would be regarded as adequate and render the restrictions imposed as reasonable measures. [7]. It would thus be settled law that every deviation from the details of the procedure prescribed for search, does not necessarily lead to the conclusion that search by the police renders the recovery of the articles pursuant to the illegal search, irrelevant evidence nor the discovery of the fact inadmissible at the trial. Weight to be attached to such evidence depends on facts and circumstances in each case. The Court is required to scan the evidence with care and to act upon it when it is proved and the Court would hold that the evidence would be relied upon. 17. The stand that the accused is in custody for sufficient time is also not legal grounds to overcome the rigours of Section 37 of the NDPS Act at this stage. 18. The grounds taken in the bail petition do not shift the burden placed by the legislature on the accused under Section 37 of the NDPS Act. 17. The stand that the accused is in custody for sufficient time is also not legal grounds to overcome the rigours of Section 37 of the NDPS Act at this stage. 18. The grounds taken in the bail petition do not shift the burden placed by the legislature on the accused under Section 37 of the NDPS Act. The petitioner has not stated anything to discharge the burden put by the stringent conditions placed in the statute by the legislature under section 37 of the NDPS Act. Thus, the petitioner has failed to make a case for bail at this stage. 19. A perusal of the petition does not refer to any averment based on which this court is assured that if this recidivist is released on bail, then he shall not indulge in criminal behaviour. 20. A perusal of the bail petition and the documents attached, prima facie points towards the petitioner's involvement and does not make out a case for bail. Any further discussions are likely to prejudice the petitioner; this court refrains from doing so. 21. Any observation made here in above is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments. The petition is dismissed. All pending applications, if any, stand closed. However, considering the petitioner's right to speedy trial coupled with the pre-trial incarceration, this court requests the concerned trial court to make all endeavours to conclude the trial within six months, of which the prosecution evidence be completed preferably within five months and the remaining time to provide an opportunity to the accused to lead defence evidence, if so desired, and to conclude its hearing. To meet the deadline, an endeavour be made to speed up the process for service and to pass the necessary directions in this regard. It is clarified that if expediting this trial disturbs the docket of the concerned court, then a balance be struck, and if, on this account, any delay happens, then an extension can be sought by mentioning such reasons. It is clarified that this order speeding up the trial is subject to the condition that neither the petitioner shall seek any adjournment nor try to use any tactics to delay the trial. It is clarified that this order speeding up the trial is subject to the condition that neither the petitioner shall seek any adjournment nor try to use any tactics to delay the trial. If they do so, this order of expediting the trial shall stand automatically recalled by resorting to Section 362, read with section 482 Code of Criminal Procedure, 1973, without any further reference to this court . If any of the accused is on bail and fails to attend the trial without any sufficient cause, then they be dealt with strictly but in accordance with the law. It is clarified that if the trial is not concluded by the date mentioned above, and if the delay is not attributable to the petitioner, then the petitioner may file an application for bail before the trial court, which shall decide it expeditiously and consider the bail on the grounds of pre-trial custody, and all the previous orders of dismissal passed by the trial court or High Court shall not come in the way.