Chattisgarh High Court
Yudhisthir Mehar vs State Of Chhattisgarh on 5 April, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
MCRC No. 2397 of 2021
Yudhisthir Mehar S/o Gahadu Mehar, Aged About 47 Years, R/o -village
Chichaiguda, Thana Junagarh, District -Kalahandi, (Odisha).
---- Applicant
Versus
State of Chhattisgarh, Through Station House Officer, Police Station
-Bagbahara, District -Mahasamund, Chhattisgarh.
--- Respondent
For Applicant : Mr. Vikash Pradhan, Advocate.
For Respondent-State : Mr. Rakesh Sahu, PL.
Hon'ble Shri Justice Parth Prateem Sahu
Order on Board
05/04/2021
Heard.
1. This is first bail application filed under Section 439 of the Code of Criminal
Procedure for grant of regular bail to applicant, who has been arrested in
connection with Crime No.277/2020, registered at Police Station
-Bagbahara, District -Mahasamund, (C.G), for the offence under Section
20 (B) of Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as 'NDPS Act').
2. Case of the prosecution, in brief, is that on 15.12.2020, Inspector of Police
Station Bagbahara was checking the vehicles at N.H353 Main Road
Pithowra Chowk, he stopped one motorcycle, on which three persons were
travelling namely Yudhisthir Mehar (present applicant), Bhuraram Megwal
and Bhagirathi Ram Bishnoi, carrying two bags with them. During search
total 25 kg contraband (Ganja) was recovered from the said bags in their
possession in presence of witnesses. Based upon which they are arrested
and aforementioned crime is registered against them.
3. Learned counsel for the applicant submits that Investigating Officer who
investigated the crime, is not competent to investigate the offence under
Section 20 of the NDPS Act. As per amended notification issued on
30.10.2019, amending earlier notification dated 14.11.1985, Investigating
Officer in such cases should be above the rank of Inspector, whereas, in
the instant case, Investigating Officer is an Inspector, hence, entire
investigation is vitiated. In support of this contention, he places his reliance
on the judgment passed by Hon'ble Supreme Court in case of Tofan
Singh vs. State of Tamil Nadu reported in (2013) 16 SCC 31. He further
submits that there is non-compliance of provisions of Section 50 of NDPS
Act, as the search of applicant has not been done before the Gazetted
Officer or Magistrate, but Police Officers themselves have conducted
search of applicant and other co-accused persons. In support of this
contention, he places his reliance on judgment dated 05.09.2018 passed
by Hon'ble Supreme Court in CRA/459/2017, judgment dated 20.08.2019
passed in CRA/1206/2013 & judgment dated 29.10.2010 passed in
CRA/943/2005. As there is non-compliance of mandatory provisions of
NDPS Act, investigation itself is vitiated. Hence, he may be released on
regular bail.
4. On the other hand, learned State Counsel opposes the submissions made
by learned counsel for applicant and submits that Notification dated
30.10.2019 relied upon by learned counsel for the applicant is not
applicable in this case because said notification deals with the powers of
the officers of Central Bureau of Narcotics, Junior Intelligence Officer in
Narcotics Control Bureau, Central Board of Indirect Taxes & Customs,
Directorate of Revenue Intelligence, Central Economics Intelligence
Bureau and not with the powers of State Police. The powers of State
Police under Section 42 of NDPS Act are notified on 14.11.1985, wherein
for the Police Department the Superintendent of Police, Additional
Superintendent of Police, Deputy Superintendent of Police, Assistant
Superintendent of Police, Inspector, Sub-Inspector, Asst Sub Inspector
have been notified within their respective jurisdiction, hence, submission
made by learned counsel for the applicant that Investigating Officer who
investigated the crime is not competent to investigate the offence under
Section 20 of the NDPS Act is not correct. Learned State counsel further
submits that notice under Section 50 of NDPS Act has been given to
applicant and other co-accused persons informing them about their rights
to be searched before the Magistrate or Gazetted Officer and on their
consent they were searched by Police Officer itself. For the search of
motorcycle and bag the provisions of Section 50 will not apply. He submits
that entire proceeding has been drawn strictly in accordance with the
provisions of NDPS Act. Hence, applicant is not entitled for benefit under
Section 439 of Cr.P.C.
5. Heard learned counsel for the parties.
6. So far as first submission made by learned counsel for applicant based on
Notification dated 30.10.2019 is concerned, perusal of said notification
would show that it talks about the officers of department of Central Bureau
of Narcotics, Junior Intelligence Officer in Narcotics Control Bureau,
Central Board of Indirect Taxes & Customs, Directorate of Revenue
Intelligence, Central Economics Intelligence Bureau for exercising their
powers under Section 42 & 53 of NDPS Act. Notification issued by State
Government conferring powers under Section 42 includes Inspector, Sub-
Inspector and Assistant Sub-Inspector. Hence, submission made by
learned counsel for applicant that Investigating Officer who conducted
investigation in the instant case was not competent is not sustainable.
7. So far as second submission with regard to non-compliance of provisions
of Section 50 of NDPS Act is concerned, perusal of case diary would show
that the Police had given notice under Section 50 to present applicant and
other co-accused persons on 15.12.2020 and they have given their
consent to their own search and also the bags carried by them in presence
of witnesses by the Police Officer. They have been searched in presence
of two witnesses namely Damodar Baghel and Suraj Tandi. The Case law
relied upon by the learned counsel for the applicant is on different facts. In
CRA No.459/2017 the co-accused person therein has stated that he
wanted his search in presence of Gazetted Officer and he has been
searched by the Gazetted Officer. The Hon'ble Supreme Court in case of
CRA No.459/2017 held that it does not vitiate investigation. In case of CRA
No.943/2005 also held that it is mandatory for Investigation Agency to
inform and bring to his knowledge that he may choose for his personal
search either before the Magistrate or Gazetted Officer.
8. In case at hand, applicant and other co-accused persons have been made
aware about their rights, they gave their consent to be searched in
presence of witnesses by the Police Officers. In the given facts of the case,
there is prima facie proper compliance of Section 50 of NDPS Act.
9. Considering the entire facts and circumstances of the case, nature of
allegations, material available in the case diary, total quantity of
contraband (Ganja) recovered from the possession of applicant and other
co-accused persons, I do not find it a fit case to enlarge the applicant on
regular bail.
10. Accordingly, bail application is rejected.
Sd/-
(Parth Prateem Sahu)
Judge
Jamal/-
