9911796707
TMI Blog1994 (4) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... order. 2. The conspectus of the facts is that at or about 11.45 A.M. on 15-5-1993 while the respondent was having a surveillance for the persons accused of the offences under the N.D.P.S. Act on intelligence spotted a light blue colour Ambassador car bearing the registration mark TNB 9346 parked near National Hotel at Salem, and in which, two persons were found getting into the same from the Hotel and that the said car proceeded towards Omalur Road, being followed by the respondent and that on covering a certain distance, at a place where a loaded public transport lorry was parked in the opposite direction in the same road, the car was stated to have stopped and one person from the car alighted and got into the lorry and on piloting by the said car, the lorry with the load of consignment followed, which was followed by the respondent s officials. At a place called Thallapallam on the same highway, both the lorry and the car were stopped and intercepted and on questioning, the respondent came to know that contrabands under the N.D.P.S. Act were concealed under the consignment of the lorry and that the inmates of the lorry as well as the car were responsible for the same and on fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lorry. If that was so, while intercepting the said car by the respondent by closely following at about 11.40 P.M. at Thallapallam only one person could have been found in the car but three were found as alleged by the voluntary statements recorded from the petitioners. These two versions, according to the learned counsel poses a grave and serious doubt in the genuineness of the statements and mahazar prepared by the respondent. (2) Basing reliance upon the language and phraseology adopted in the detention mahazar prepared at about 11.45 A.M. on 15-5-1993, learned counsel contends that the respondent officials had a definite information about the trafficking and transport of the narcotic drugs, namely, the heroin and that therefore, they ought to have recorded the same in writing as provided under Section 42 of the N.D.P.S. Act and sent a copy of the special report to the immediate superior officer and which they had not done, clearly amounts to the non-compliance of the mandatory directions of the said sections of law. (3) Thirdly that after taking the car and the lorry in question to the office of the respondent at about 9 P.M. on the day of occurrence, that is after sun set t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the N.D.P.S. Act in this regard. Section 41 of the N.D.P.S. Act reads as follows :- 41 Power to issue warrant and authorisation - (1) A Metropolitan Magistrate or a magistrate of the first class or any magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or phychotropic substance in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the Commission of such offence is kept or concealed. (2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place may, between sunrise and sunset :- (a) enter into and search any such building, conveyance or place ; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the Commission of any offence punishable under Chapter IV relating to such drug or substance; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance : Provided that if such officer has reason to believe that a search-warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and searc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6-1993, which according to the learned counsel, was supplied for the purpose of writ proceedings. The same has necessarily to be adverted, which is as hereunder :- One Prabhulal of Anna Nagar, Trichy, his brother Shivanarain of Trichy, Mohammed Shabir of Madhya Pradesh and Loganathan of Dindigul are engaged in dealing in narcotic drugs. Intelligence gathered indicates that Shivanarain and Loganathan are likely to proceed to Salem and stay in National Hotel, Salem and are likely to receive huge quantity of Heroin from Mohammed Shabir of Madhya Pradesh on 15-5-1993 who is accompanying the said consignment in a lorry from North India. Shivanarain and Loganathan are likely to travel in a car bearing Registration No. TNB 9346 to meet the lorry carrying the contraband Heroin at the outskirts of Salem. If this car is followed from National Hotel, then we may be able to seize the contraband. The contents of this document though has not been controverted, clearly fortifies the conclusion that on information the respondent authorities had a total surveillance on the Car in question with definite information about the transporting of the narcotic drugs under the N.D.P.S. Act, with the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted Officer or a magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the gazetted Officer or the magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact . 8. However, with regard to the above ratio, in the context that search and seizure was made not on the person but over the vehicles in question, one can argue that Section 50 of the N.D.P.S. Act cannot be made applicable. I can find some force in the contentions on behalf of the respondent in that regard. The mandatory directions required to be compulsorily complied with, namely, recording the details of information about the commission of Offence in writing by the respondent before proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase law cited, I am fully satisfied to hold that the petitioners are entitled to be enlarged on bail and that they are not likely to commit any offence during the tenure of bail. The very non-compliance of Section 42(2) of the N.D.P.S. Act is definitely a presumption available as a total prejudice to the accused who are facing grave charges in the context of the offences alleged. However, with the following conditions, I grant bail to the petitioners herein. 12. Both the petitioners shall be released on bail on each of them executing a bond for a sum of Rs. 1,00,000/- (Rupees one lakh only) with two sureties for a like sum each to the satisfaction of the Designated Judge, at Salem on whose file the case is now pending. (2) Except on the hearing dates, both petitioners shall reside within Trichirapalli Municipal town limits and report before the respondent daily at 10 A.M. and 6 P.M. until further orders. (3) They shall not move out of the said town on any account without the permission of this court. (4) They shall not indulge in meddling with the prosecution witnesses or in causing impediment to the trial and should not indulge in any of the offences either under the speci ..... 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