9911796707
TMI Blog1993 (9) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... f an offence under the N.D.P.S. Act that the respondent herein was going to receive narcotic drug from one Mahesh who was arriving by Grand Trunk Express on 8-7-1993, the petitioner herein, who is the complainant and his staff, maintained surveillance at the lodge in Madras where the respondent herein was staying, as well as in the Central Railway Station and thereby, watched the movements very closely. On the arrival of the said train, the respondent herein received two persons from the said train and all the three were returning jointly. When they are intercepted and enquired, their names and places were revealed. On further questioning, they had replied, that they were not in possession of any narcotic drugs, which was followed by the search of their luggage. While doing, so, Mahesh Rathod admitted that he was in possession of one kilogram of Heroin in his suit case. Then on the search of the luggage of the said Mahesh, the petitioner recovered two cloth bags, which contained the contraband of Heroin. But however the luggage of the other did not contain any contraband or any incriminating document. But significantly, on the personal search of the respondent herein, the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l examined and their statements were recorded and wherein, all of them have admitted their involvement in the offence. Mahesh Rathod, Sanjay Kamavath, the respondent herein and Rahamathullah were arrested on 8-7-1993 at 23.00 hours and Sikkander was arrested at 13.00 hours on 9-7-1993 under the provisions of the N.D.P.S. Act. According to the petitioner, the value of the seized Heroin is about Rs. 2,00,000/-. 6. Appending the xerox copies of all the recorded statements and the report provided under Section 57 filed by the seizing officer for the seizure of 1000 grams of Heroin, with the remand report detailing all the abovesaid facts, the respondent herein along with the other accused was produced before the Additional Chief Metropolitan Magistrate, Economic Offences II, Madras, on 9-7-1993 praying for remand in judicial custody. 7. To appreciate the case in hand in the proper perspective, I have extracted the very reasoning given by the learned remanding Magistrate on 9-7-1993, which are as follows : "9-7-1993 : All the 5 accused produced today before me at my residence at 8.15 p.m. No complaint against the D.R.I. Officials. Original records perused. There is prima facie case f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein had given a voluntary confession statement and on the basis of which Rahamathullah and Sikkander were also arrested. According to the learned Principal Sessions Judge, none of the accused including the respondent herein had complained to the remanding Magistrate that their statements were obtained either by threat or coercion nor did they retract their confession statement and the confession statement voluntarily given by the respondent herein, amounts to documentary evidence and is totally admissible in evidence, as provided under Section 67 of the Act. He would further opine, that Section 66 provides the legal presumption regarding the involvement of the respondent in the offence alleged against him. According to the learned Principal Sessions Judge, it was not at all possible for the Court to believe that the petitioner had not involved in the alleged offences but on the other hand, he was found closely associated with the other accused and that the whole thing has to be concluded only after the trial and that from the documents appended and relied on, the learned Judge, during the observation has categorically stated, that the respondent had contacted Mohammed Yasin over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner by contending that though the Officials of Directorate of Revenue Intelligence are not deemed to be regular Police also are to investigate the cases under N.D.P.S. Act, but however, while seizing the contraband of Heroin of one kilogram, since the mandatory provisions of Sections 50, 51, 52A, 53 of the N.D.P.S. Act have not been complied with by the Petitioner coupled with the fact of non-production of he seizure mahazar to the Court, the rigour of Section 37 of the N.D.P.S. Act, cannot be taken to mean, that the learned Principal Sessions Judge, went wrong in granting bail to the respondent and that therefore, in view of the non-compliance of the above mandatory provisions of law, the order granting bail to the respondent herein, is perfectly correct and on par with the law made in furtherance of the interests of justice and is not liable to the cancelled forthwith. 12. In the light of the above rival contentions, the only point, that arises for consideration is, whether the impugned order passed by the learned Principal Sessions Judge, Madras in Crl. M.P. No. 3732 of 1993 dated 23-7-1993 is liable to be set aside? 13. Point: A plain reading of the impugned order pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the prosecution? If so, to what extent? 14. Section 100 of the Code of Criminal Procedure deals with the persons in charge of closed place to allow search. Various sub-sections numbering 1 to 8 of Section 100 of the Code deal with the mode of searches to be conducted by the officers concerned but only under search warrants. Similarly sub-section (4) of Section 165 of the Code makes it clear that the provisions of this Code as to search-warrants and the general provisions as to searches contained in Section 100 shall so far as may be, apply to a search made under this Section. Sub-section (5) provides that copies of any record made under sub-section (1) or sub-section (3) of Section 165 of the Code shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence, and the owner or occupier of the place searched shall, on application, be furnished, free of cost, with a copy of the same by the Magistrate. But however, it has to be noted that the mode in which the searches are to be made or conducted pursuant to Section 100 or Section 165 of the Code are not applicable to the search or seizure of the contraband under the cover of mahazar in this ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Sections 41, 42, 43, 50, 51, 55 and 57 of the N.D.P.S. Act, vitiates the investigation being done by any investigating agency, which can be certainly taken note of while the High Court is exercising its power under Section 439 of the Code of Criminal Procedure in spite of Section 37 of the N.D.P.S. Act. In Narcotics Control Bureau v. Kishan Lal & Others [1991 (52) E.L.T. 328 (S.C.) = 1991 L.W. (Cri.) 53], the Supreme Court, has held as follows : "The NDPS Act is a special enactment and it was enacted with a view to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. That being the underlying object and particularly when the provisions of S. 37 of NDPS Act are in negative terms limiting the scope of the applicability of the provisions of Cr. P.C. regarding bail, in our view, it cannot be held that the High Court's powers to grant bail under S. 439 Cr. P.C. are not subject to the limitation mentioned under S. 37 of NDPS Act. It can thus be seen that when there is a special enactment in force relating to the manner of investigation, enquiry or other wise dealing with such offences, the other powers under C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Inspector of Police, etc. [1993 L.W. (Cri.) 371], a Division Bench of this Court, also held the view that the non-compliance of the mandatory provisions in-built in the various provisions of the N.D.P.S. Act by the investigating agency, whoever it may be, can be considered by the High Court while exercising the power in granting the bail under Section 439 of the Code irrespective of the total embargo provided under Section 37 of the N.D.P.S. Act fettering the High Court's power keeping in view the object and purpose of the N.D.P.S. Act. 19. Thus, from the above position of law enunciated by the Apex Court as well as other High Courts, as aforesaid, it is made clear, that the total embargo and restriction placed on the Court to grant bail under Section 439 of the Code though available in Section 37 of the N.D.P.S. Act, the non-compliance of the mandatory directions in-built in Sections 41 to 58 of the NDPS Act can be considered while exercising the power to grant bail under Section 439 Cr. P.C. For the said reason only, the legislature has provided clause (b) of Section 37 in the manner as extracted hereunder : "(b) No person accused of an offence punishable for a term of imprison ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedural mandate nor a mode prescribed by the relevant law. However, it is seen that the recovery of the contraband was made under the cover of mahazar attested by two independent witnesses, prepared at about 6.50 A.M. on 8-7-1993 and this factum has been clearly specified in the remand report itself which has been sent to the court along with the copies of the statements recorded from the accused and that all the same has been admitted by the accused when they were produced before the learned Magistrate. It has to be noted further that a copy of the mahazar, prepared by the petitioner, has been served upon the accused. Under such circumstances, it is not known from where and under what provision of the Procedural Law, the production of seizure mahazar has become compulsory or a necessary formality, as observed by the learned Sessions Judge while granting the bail. A careful analysis of the present situation in the context of the above case laws on the procedurals laid down under the N.D.P.S. Act and the Code of Criminal Procedure, clearly demonstrates the fact that the non-production of the mahazar either wantonly or inadvertently, does not vitiate the investigation in this cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le, as a matter of principles of sound judicial policy. If this is the position, I have no hesitation to hold that the despatching of the seizure mahazar by the petitioner herein to the court as expeditiously as possible is a legal duty which is to be strictly followed atleast from now onwards by the petitioner. I have held the view for the reasoning that the absence of specific provisions in the N.D.P.S. Act for sending the mahazar immediately to the court cannot be allowed to be taken advantage of by the petitioner for the reasons aforesaid. 21. But however, with regard to the instant case on hand, in my considered view. Section 37(b) of the N.D.P.S. Act, provides a total embargo for granting bail to the respondent. If a person accused of an offence under the N.D.P.S. Act is to be enlarged on bail during the pendency of investigation, courts should put on extra caution that such person cannot come within the teeth of Section 37 of the N.D.P.S. Act and except on the said ground, on no other instances or circumstances, in the context of the total embargo provided in the said Section of law, an accused under the N.D.P.S. Act is to be allowed to go on bail. In the instant case, if t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
