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TMI Blog1994 (3) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. This application is the second attempt made on behalf of the petitioner to enlarge him on bail and the first one was made in Crl. O.P. No. 1625 of 1994, in which, the same learned counsel Mr. A. Natarajan contended that the mandatory nature and directions in built in Sections 54A read with 2(c) and 50 of the N.D.P.S. Act have not been complied with and after hearing both sides, this Court has dealt with the matter elaborately and after having canalised the same, dismissed the petition for bail on 4-3-1994. 2. In this second attempt, learned counsel would rely upon the judgment rendered by the Supreme Court in State of Punjab v. Balbir Singh, J.T. 1994 (2) S.C. 108 for the position that Sections 50 and 57 of the N.D.P.S. Act to be foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e arise frequently before the trial courts. Therefore, we find it necessary to set out our conclusions which are as follows :- (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr. P.C. and when such search is completed at that stage section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or Psychotropic substance then the police officer, who is not empowered, should inform the empowered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prosecution case and vitiate the conviction. (2C) Under Section 42(1) the empowered officer if he has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed officer while acting under Sections 41(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. 6. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contention raised on behalf of the petitioner is viewed with reference to the above principles of law laid down by the Supreme Court, I am at every difficulty to identify any ground advantageous to the petitioner to enlarge him on bail. Each and every aspect has been dealt with and considered very elaborately. The respondent herein gained entry into the house of the petitioner only on authorisation by his superior officer, duly empowered and seized the contraband, a narcotic substance for the offences alleged and about the seizure and arrest, it has been duly intimated as claimed by the prosecution. Therefore, it is not at all possible to hold that there is any mandatory violation of the provision of law in this case and that any serio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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