Orissa High Court

Gulashad vs State Of Odisha on 25 April, 2023

     IN THE HIGH COURT OF ORISSA AT CUTTACK

               BLAPL No.1703 of 2023
  (In the matter of applications under Section 439 of the
  Code of Criminal Procedure).


  Gulashad                                         ....        Petitioner

                                     -versus-
  State of Odisha                                  ... Opposite Party

  For Petitioner                 :    Mr. S.Manohar, Advocate
  For Opposite Party             :    Mr. P.K.Pattnaik, AGA


       CORAM:
                         JUSTICE G. SATAPATHY

                   DATE OF ARGUMENT: 12.04.2023
                   DATE OF JUDGMENT: 25.04.2023

G. Satapathy, J.

1. This is an application U/S. 439 of Cr.P.C. by the

Petitioner for grant of bail in connection with

Machakund P.S. F.I.R. No. 36 dated 19.04.2021

corresponding to Special T.R. Case No. 40 of 2021

pending in the Court of learned Addl. Sessions Judge-

cum-Special Judge, Koraput for commission of

offence punishable U/S. 20(b)(ii)(C) of NDPS Act.

2. The broad allegations as appearing against

the petitioner and others are that on 19.04.2021 at

10.30 A.M. the informant Police S.I. and staff while

performing vehicle verification at Kangrapada bridge,

noticed one white colour Swift Dzire car coming

towards Lamtaput side from Machkund side and they,

accordingly, stopped the car and detained the four

occupants of the said car including the driver. On

suspicion, they verified the car and found three

numbers of tensil jery bags loaded in the dicky of the

car with no registration number plate and out of such

jery bags, acute smell of ganja was emitting. On

being asked, the four occupants detained by the

police disclosed their names as Ajay Pratap Kori, Hari

Sankar Singh, Gulashad(petitioner) and Rahul Kumar

Verma. After procuring weighman and two

independent witnesses as well as successfully

requisitioning the Executive Magistrate-cum-

Tahasildar, the informant-police officer gave notice to

the above named accused persons in writing U/S. 50

of NDPS Act and weighed the contents of recovered

three numbers of jari bags which were found to be

flowering and fruiting tops of cannabis plant

(Contraband Ganja) in presence of witnesses and

Executive Magistrate and it came to 102 Kgs and 400

grams of Contraband Ganja without jery bags. The

informant police officer thereupon, accordingly,

seized the aforeaid quantity of Contraband Ganja in

presence of witnesses. In the course of search of the

said Swift Dzire car, one registration certificate

bearing No. UP70CX5086 standing in the name of

Nishar Ahmad of Pratapgarh(UP) and one pollution

certificate were also recovered. On personal search of

each of the four occupants, different articles such as

mobile phones, Aadhar cards etc. were found and

seized. On the aforesaid fact, the S.I. of Police lodged

a FIR before the IIC, Machkund Police Station who

registered Machkund Police Station FIR No. 36 dated

19.04.2021 which was investigated into and on

completion of investigation, charge sheet was filed

against the accused persons including the present

petitioner for commission of offence U/S. 20(b)(ii)(C)

of NDPS Act.

2.1 On 14.11.2022, the present petitioner

unsuccessfully moved an application for grant of bail

before the learned Addl. Sessions Judge-cum-Special

Judge, Koraput who eventually rejected the bail

application of the petitioner after taking note of the

allegations and the stipulation as contained in Section

37 of NDPS Act. The petitioner, thereafter,

approached this Court in this bail application for his

release on bail.

3. In the course of hearing of bail application,

Mr.Shyam Manohar, learned counsel for the petitioner

appearing virtually has submitted that the petitioner

is neither the owner nor the driver of the car from

which Contraband Ganja was recovered and even in

the course of investigation, no materials has been

collected to prima facie indicate that the petitioner

was dealing with the Contraband Ganja either as a

seller or purchaser nor was any Contraband Ganja

recovered from the personal search of the petitioner

and therefore, by no stretch of imagination, conscious

possession of Contraband Ganja can be attributed to

the petitioner. It is further submitted by Mr. Manohar

that the possession of Contraband Ganja would have

been attributed to the petitioner, had he been found

alone in the vehicle and when the personal search of

the petitioner does not lead to seizure of any

Contraband Ganja, he thereby can be safely

presumed to be innocent occupant of the vehicle.

Additionally, learned counsel for the petitioner has

also submitted that apparently there was neither any

compliance of Section 42 nor of Section 50 of the

NDPS Act and such non-compliance would strike at

the very root of the case and therefore, the petitioner

is entitled to bail on the very ground of non-

compliance of section 42 and 50 of NDPS Act,

compliances of which are mandatory in nature. On

summing up his argument, learned counsel for the

petitioner has prayed to allow the bail application of

the petitioner by relying upon the following decisions

(i) Darshan Singh Vrs. State of Haryana; (2016)

14 SCC 358, (ii) Amiri Ali Ligaga Vrs. The State;

1995 SCC Online Delhi 895, (iii) Sanjeev and

another Vrs. State of Himachal Pradesh; 2022

Live Law (SC) 267, (iv) SK. Raju @ Abdul Haque

@ Jagga Vrs, State of West Bengal; (2018) 9

SCC 708, (v) Rajender Singh Vrs. State of

Haryana in Criminal Appeal No. 1051 of 2009

disposed of on 8th August, 2011, (vi) State of

Punjab Vrs. Balbir Singh; AIR 1994 SC 1872 and

(vii) Sarija Banu(A) Janarthani and others Vrs.

State through Inspector of Police; (2004) 12

SCC 266.

4. In reply, Mr.P.K.Pattnaik, learned AGA has

however, strongly opposed the bail application of the

petitioner by contending inter alia that there was

adequate compliance of Sections 42 and 50 of the

NDPS Act as evident from the materials on record and

even if, the prosecution has complied the provisions

of Section 42 and 50 of NDPS Act, but since the

recovery of Contraband Ganja was from the dicky of

the car, there is absolutely no requirement of

compliance of Section 50 of NDPS Act which speaks

about the compliance for personal search of the

person accused of offences under NDPS Act. Learned

AGA has submitted by taking this Court through the

materials placed on record that the petitioner was

found as one of the occupants of the car having no

registration number plate, carrying 102 Kgs. of

Contraband Ganja which by itself attracts the

stipulation as contained in Section 37 of NDPS Act,

but the petitioner having failed to satisfy the Court

the twin conditions as enumerated therein, he is not

entitled to be released on bail. On the aforesaid

submissions, learned AGA has prayed to reject the

bail application of the petitioner.

5. After having considered the rival

submissions advanced on behalf of the parties, it

appears that the petitioner has approached this Court

for grant of bail primarily on two grounds. One of

such ground is non-compliance of Sections 42 and 50

of the NDPS Act and the other one is for want of

prima facie allegations. In addressing the first plank

of argument, it appears to the Court that the

petitioner claims apparent non-compliance of

Sections 42 and 50 of NDPS Act, but learned AGA on

the other hand claims sufficient and adequate

compliance of the same. In support of his contention

for non-compliance of Section 42 by the Investigating

Officer, the learned counsel for the petitioner has

taken this Court through the contents of the FIR, but

the learned trial Court while rejecting the bail

application of the petitioner has indicated in his order

that "the S.I. of Police has recovered and seized 102

Kgs. and 400 Grams of Contraband Ganja from the

exclusive and conscious possession of the present

accused along with co-accused persons after

observing all the formalities of search and

seizure under NDPS Act." This Court, however, is

conscious of the fact that compliance of Section 42 of

NDPS Act is not only mandatory, but also a relevant

fact, but in view of the rival claims, the moot

question crops up for consideration is whether

compliance/ adequate compliance or non-compliance

of Section 42 of NDPS Act can be ascertained by

merely going through the contents of FIR/charge

sheet or is it required to be ascertained from the full-

fledged evidence led in the course of trial?. In support

of his contention to the effect that non-compliance of

aforesaid provision can be ascertained from FIR,

Mr.S.Manohar, learned counsel for the petitioner has

relied upon number of decisions in (i) Darshan

Singh(supra), (ii) Amiri Ali (supra), (iii)

Sanjeev(supra) (iv) SK. Raju(supra), (v)

Rajender Singh(supra) and (vi) Balbir

Singh(supra) but these decisions are rendered after

the trial when the compliance or non-compliance of

mandatory provision under NDPS Act can be precisely

ascertained through the evidence on record. On the

other hand, the petitioner has sought to press the

non-compliance of mandatory provision of Section 42

of NDPS Act for grant of bail by taking this Court

through the contents of FIR, more particularly when

trial is yet to commence and evidence thereon is yet

to be led in the case at hand. It is, of course,

contended by the learned counsel for the petitioner

that non-compliance of Section 42 would enure to the

benefit of the accused for grant of bail and in support

of such contention, reliance has been placed by him

to the decision in Sarija Banu(A) Janarthani and

others Vrs. State through Inspector of Police;

(2004) 12 SCC 266 wherein a two Judge Bench of

the Apex Court in paragraph-7 has held thus:-

"The compliance of Section 42 is mandatory and that is a relevant fact which should have engaged attention of the Court while considering the bail application."

In the prsent case on hand, non-compliance of

Section 42 of the NDPS Act has been claimed by the

petitioner which is seriously refuted by the learned

AGA by submitting that there is adequate compliance

of Section 42 of NDPS Act. The petitioner of course

has drawn the attention of the Court by taking

through the averments made in the FIR, but in the

same vigor learned AGA has also drawn the attention

of the Court to the relevant portion of the FIR where

the informant has stated "as I have reason to believe

that delay may be caused in obtaining search warrant

which would facilitate the culprits to escape with

contraband Ganja, I thought it proper to detect the

Ganja loaded vehicle without obtaining the search

warrant and then I intimated the fact to IIC,

Machkund P.S., SDPO, Nandapur as my immediate

superior and subsequently to S.P. Koraput as per the

provision of NDPS Act at 11.15 A.M." Be that as it

may, there is no dispute about total non-compliance

of Section 42 of NDPS Act is impermissible in the eye

of law as held by a Constitution Bench of Apex Court

in Karnail Singh Vrs. State of Haryana; (2009) 8

SCC 539 wherein while answering a reference

whether compliance of Section 42 is mandatory or

not and substantial compliance is sufficient, a five

Judges Bench of the Apex Court recorded its

conclusion in Paragraph-35 and it is, accordingly, held

therein at Paragraph 35 (c) and (d), which are very

much relevant for this case, as under:-

"(c) In other words, the compliance with the requirements of Sections 41 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.

(d) While total non-compliance with requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear

violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act.

Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001."

6. In Karnail Singh(supra), the Apex Court

in Paragraph-33 and 34 has further held that:-

33. xx xx xx "the relaxation by the legislature is evidently only to uphold the object of the Act. The question of mandatory application of the provision can be answered in the light of the said amendment. The non-compliance of the said provision may not vitiate the trial if it does not cause any prejudice to the accused."

34. xx xx xx "these provisions should not be misused by the wrongdoers/offenders as a major ground for acquittal. Consequently, these provisions should be taken as discretionary measure which should check the misuse of the Act rather than providing an escape to the hardened drug-peddlers."

7. It is, therefore, very clear on a conspectus

of the principles laid down by the Apex Court in

Karnail Singh (supra) that whether there is

adequate or substantial compliance of Section 42 of

NDPS Act or not is a question of fact to be decided in

each case and such non-compliance may not vitiate

the trial, if it does not cause any prejudice to the

accused and the provision should be taken as a

discretionary measure which should check the misuse

of the act, rather than providing an escape to the

hardened drug peddlers and therefore, the non-

compliance or compliance can be precisely

ascertained at the stage of trial when full-fledged

evidence is led before the Court and therefore, it

would not be possible to ascertain meticulously the

compliance or non-compliance of Section 42 at the

stage of granting bail particularly in absence of the

evidence.

8. Adverting to the other contention of the

petitioner with regard to non-compliance of Section

50 of the NDPS Act, this Court is never in doubt that

the Empowered Officer is under obligation of his duty,

before conducting the search of the person of a

suspect, to inform the suspect either orally or in

writing about his right to be searched before a

Gazetted Officer or a Magistrate, but failure to give

such information would not only vitiate the trial, but

render the recovery of illicit article illegal. This Court,

however, is of the view that the compliance of

Section 50 applies to search of a person, but not for

the recovery of contraband articles in a search of

premises or conveyance. In this regard, this Court is

fortified with the decision of Constitutional Bench of

Apex Court in State of Punjab Vrs. Baldev Singh;

(1999) 6 SCC 172 which was relied upon by the

petitioner and wherein a five Judges Bench of Apex

Court has been pleased to hold at Paragraph-12 as

under:-

12. "On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted."

9. Whether compliance of Section 50 is a

question of fact or not has been well explained by the

Apex Court in Baldev Singh(supra) wherein at

Paragraph-33, the Apex court held as under:-

33."The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the Court on the basis of the evidence led at the trial and the finding on that issue, one way or

the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50 and, particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial."

10. In the instant case in support of grant bail to

the petitioner for non-compliance of Section 50 of

NDPS Act before commencement of trial, learned

counsel for the petitioner also relies upon the decision

of this Court in Raghu alias Rahul Rajput Thakur

Vrs. State of Odisha; 2023 CRI.L.J. 487 for grant

bail to the accused therein for non-compliance of

Section 50 in matters relating to illegal transportation

of 137 Kgs and 300 Grams of Contraband Ganja in a

vehicle, but this Court at the cost of repetition once

again reiterates the observation of the Apex Court in

the decision relied upon by the petitioner in

Vijaysingh Chandubha Jadeja Vrs. State of

Gujarat; (2011) 1 SCC 609 wherein a

Constitutional Bench of five Judges of our Apex Court

has observed in paragraphs-20 and 31 as under:-

20."The mandate of Section 50 is precise and clear viz. if the person intended to be searched expresses to the authorized officer his desire to be taken to the nearest gazetted officer or the Magistrate, he cannot be searched till the gazetted officer or the Magistrate, as the case may be, directs the authorized officer to do so.

31. "The question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf."

11. On analyzing the provision of Section 50 of

NDPS Act and following the dictum of the Apex Court

in Baldev Singh (supra) and Vijaysingh

Chandubha Jadeja(supra) which have definite and

clear precedent value, this Court is of the firm view

that compliance of Section-50 applies to search of

person, but not to apply to search of premises or

conveyance, and the compliance or non-compliance

of Section 50 of the NDPS Act is a question of fact

and thereby, is a matter of trial and it can be

ascertained precisely after complete evidence is led

before the Court. In the present case, the narration

of allegation reveals that Contraband Ganja was

recovered from a Maruti Suzuki Swift Dzire car

without having any registration number and the

petitioner was one of the occupants of said car, and

although a prima facie compliance of Section 50 in

the context may not be required for search of the

vehicle, but the investigating agency has, of course,

made endeavor for compliance of Section 50 of NDPS

Act for search of the person of the petitioner, which is

to be examined/tested after evidence is tendered in

this case.

12. In view of the settled position of law as

explained by the Apex Court in Baldev Singh

(supra) and Vijaysingh Chandubha

Jadeja(supra), the compliance or non-compliance of

Section 50 is a question of fact and can be gone into

in the course of trial, but when the trial is yet to

commence in this case and evidence is yet to be led,

this Court cannot precisely conclude that there is

apparently non-compliance of Section 50 of NDPS

Act, more particularly when the learned Government

Advocate stoutly refutes the contention of the

petitioner for non-compliance of Sections 42 and 50

by placing reliance to the averments made in the FIR

and copy of notice given U/S. 50 to the petitioner and

he, thereby, emphatically submits adequate

compliance of Sections 42 and 50 of NDPS Act which

can be examined/tested after evidence is led in the

case. What emerges from the aforesaid discussions in

the present case by following the law laid down by

Apex Court in Karnail Singh (supra), Baldev

Singh (supra) and Vijaysingh Chandubha

Jadeja(supra) is that since the compliance or non-

compliance of Section 42 & 50 of the NDPS Act being

questions of facts can be ascertained after full-

fledged evidence is tendered in the trial before the

Court, but the same cannot be ascertained at this

stage when investigation has been completed and the

evidence is yet to be tendered. Hence, the

submissions made on behalf of petitioner for grant of

bail to him owing to non-compliance of Section 42 &

50 of the NDPS Act is not acceptable and merits no

consideration at this stage, especially when evidence

in this case is yet to be tendered.

13. In this case, the FIR lodged by police officer

discloses that the informant and the staff had

detected the Maruti Swift Dzire car without any

registration number plate and the petitioner and

three others were allegedly found as occupants

therein with three Jari bags containing 102Kgs and

400 Grams of Contraband Ganja in the dicky of the

said car at the time of detection and the informant

police officer, accordingly, seized the Contraband

Ganja and later on, one number plate with number

UP70CX5086 along with one pollution certificate was

allegedly recovered by the informant from the front

desk of the car. The FIR also does not disclose any

explanation of the petitioner for his presence in the

car. What is the most important is that the quantity

of Contraband Ganja allegedly seized from the car is

coming under commercial quantity and, thereby, the

petitioner has to satisfy the Court the mandatory

conditions of Section 37 of NDPS Act for grant of bail

to him, but on conspectus of the materials placed on

record, this Court finds it difficult to record

satisfaction at this stage to the effect that the

petitioner is not guilty of the offence and he is

unlikely to commit offence while on bail, which are

mandatory requirements of Sec. 37 of NDPS Act for

grant of bail to the petitioner.

14. While granting bail to the accused for an

offence under NDPS Act involving commercial

quantity of Contraband articles, it is imperative for

the Court to see that when the Public Prosecutor

opposes the bail application of the accused, the Court

has to be satisfied that there are reasonable grounds

for believing that the accused is not guilty of such

offence and that he is not likely to commit any

offence while on bail. In this regard, this Court

considers it profitable to refer to the case in State of

Kerala and others Vrs. Rajesh and another;

(2020) 12 SCC 122 wherein the Apex Court has

held that:-

"19. The scheme of Sec. 37 reveals that the exercise of power to grant bail if not only subject to the limitation contained U/s. 439 Cr.P.C., but is also subject to the limitation placed by Sec. 37 which commences with non-obstante clause. The operative part of the said Sec. is in the negative form prescribing the enlargement of bail to any person acquit of commission of an offence under the Act, unless twin conditions are satisfied.

                     The    first  condition    is   that   the
                    prosecution    must      be    given    an

opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.

"20. The expression "reasonable grounds" means something more that prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable believe contemplated in the provisions requires existence of such facts and circumstance as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Sec. 37 that in addition to the limitations provided under the Cr.P.C. or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.

15. In Narcotics Control Bureau vs Mohit

Agarwal ; 2022 SCC Online SC 891 the Apex Court

has been pleased to held as under:-

                        "In   our    opinion     the   narrow
                    parameters       of     bail     available

under Section 37 of the Act, have not been satisfied in the facts of the instant case. At this stage, it is not safe to conclude that the respondent has successfully demonstrated that there are reasonable grounds to believe that he is not guilty of the offence alleged against him, for him to have been admitted to bail. The length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act."

16. In view of the discussions made in the

foregoing paragraphs and taking into consideration

the allegations leveled against the petitioner and

keeping in mind the alleged recovery and seizure of

commercial quantity of Contraband Ganja to the tune

of 102Kgs and 400 Grams from the dicky of Maruti

car in which the petitioner was found travelling at the

relevant time of detection and recovery of

Contraband Ganja and the consequent failure of the

petitioner to fulfill the mandatory conditions of

Section 37 of NDPS Act whereby satisfaction of the

Court is sine qua non for grant of bail to the accused