9911796707
TMI Blog1994 (3) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... ections 8(c), 21, 23 and 29 of the N.D.P.S. Act, followed by the interrogation, recording the statements, he was lodged to judicial custody on 18-5-1993 and since then onwards he was confined to be behind the bars as a remanded prisoner. 2. The facts leading to the arrest of the petitioner, according to the respondent, is that, he is the brain behind the whole episode of transporting 361.6 Kgs. of Opium valued at Rs. 36,16,000 and 66.1 Kgs. of Heroin valued at more than Rs. 132 crores through a lorry to Sri Lanka from India, and that it was intercepted on 15-5-1993 at Thalapallam Village, near Salem and found detected, and that pursuant to the same, several persons including the Driver, Cleaner and occupants of the said lorry as well as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The only contention though strenuously urged by Mr. K. Sengottian, learned counsel appearing for the petitioner is that following the view held by this Court, that Section 57 of the N.D.P.S. Act has not since been complied with, which is mandatory in nature, the petitioner is entitled to be enlarged on bail, for the presumption necessarily arises that he has not committed the offence, or is not likely to commit the offence as laid down by the Supreme Court in Narcotics Control Bureau v. Kishan Lal Others, 1991 (52) E.L.T. 328 (S.C.) = 1991 Law Weekly (Crl.) 53. On an earlier occasion, an attempt was made in this regard on behalf of the same petitioner for bail. But, however, the said ground has not been taken and that even so, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the authority and well settled law by the Apex Court of this country in Narcotics Control Bureau v. Kishan Lal Others [1991 (52) E.L.T. 328 = 1991 L.W. (Crl.) Page 53]. The Supreme Court never said that the High Court has no power at all to exercise the power to grant bail. But what was enunciated in the above-cited case was if such of the offences come under the category of Section 37(b) of the N.D.P.S. Act, then after hearing the Public Prosecutor and his opposition and if the Court comes out with a presumption that the accused has not committed an offence and further not likely to commit any offence then with certain conditions the Court can grant bail. Of course, it is true, following the said principle, this Court in Crl. O.P. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivities. Otherwise, if that allegation is fastened, it is only a technical one. Such concept though held mandatory, it is made clear, that inasmuch as it does not create any prejudice, in the context of other overwhelming evidence and materials collected against the accused, then, non-compliance of the same may not cause any presumptions prejudice to the accused. 6. Several case laws have been cited on behalf of the Bar as well as on behalf of the respondent. It is the well settled judicial view that while conducting a search or seizure either under the Code of Criminal Procedure or under the special statute for the purpose of considering the bail if the materials and the evidence collected during that time are deemed to be a legal one ir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f sending a special report as provided under Section 57 of the N.D.P.S. Act, in my considered view, merely amounts to a mere technicality and as such, cannot produce any amount of prejudice to the petitioner herein. While stating so, I have identified that a special report with regard to the arrest of the petitioner has not been intimated and followed. 7. But, in connection with the first contention, raised on behalf of the respondent, I am totally unable to persuade myself to countenance his view for the reason that it goes to the very root of the power vested with this Court under Section 37(b) of the N.D.P.S. Act. Enough for me at this stage to hold that this Court has ample power to exercise its power for granting bail, but subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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