CALCUTTA HIGH COURT
( Before : Ashim Kumar Roy and Malay Marut Banerjee, JJ. )
IN RE: SABIR HOSSAIN KHAN
CRM No. 1910 of 2017
Decided on : 23-03-2017
Criminal Procedure Code, 1973 (CrPC) – Section 439
Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) – Section 21
State of Punjab Vs. Baldev Singh, AIR 1999 SC 2378
Union of India Vs. Mohanlal, JT 2016 1 SC 596
Counsel for Appearing Parties
Sekhar Kumar Basu, ld. Sr. Advocate, Biplob Das, Advocate, for the Petitioners; Sanjay Bardhan, Advocate, for the State
It is the case of the prosecution that on November 5, 2016, a raid was held at Mayurakshi Lodge, Suri and from room no.1 of the said Lodge, three (3) miscreants were apprehended, who are now before us, seeking bail in connection with that case.
2. It is the further case of the prosecution that during search, total 650 gms of heroin was recovered, which is much above the commercial quantity of 250 gms and the said heroin was kept concealed under a cot in a bag. The seizure was effected in presence of the independent intending witnesses and signatures of all the three petitioners were taken thereon.
3. It be noted that before seizure in writing all the three (3) petitioners were apprised of their right to be searched in the presence of a Magistrate or a Gazetted Officer in terms of section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and in response to that they in writing intended. to be searched even in presence of a police officer, who is in the rank of gazetted officer.
4. The learned Senior Advocate appearing on behalf of the petitioners, Mr.Sekhar Kumar Basu, vehemently contends that the prosecution case has lost its worth since after the seizure the procedure prescribed under section 52A of the NDPS Act has not been followed in any manner whatsoever.
5. In this regard, he refers the judgement of the Hon’ble Supreme Court in the case of Union of India v. Mohanlal & Anr., reported in JT 2016 (1) SC 596 and draws our attention to the contents of paragraphs 13, 14, 19 and 20 as also a notification issued on January 16, 2015 in exercise of power conferred under section 52A of the NDPS Act.
6. We have very carefully gone through the aforesaid decision relied upon by Mr.Basu and more particularly through the observation of the Apex Court made in the paragraphs, as above. We, however, do not find that there is any remote indication that in case of failure to comply with the mandate of Section 52A of the NDPS Act, the search and seizure will become invalid and thereby the accused will be entitled to bail even on the face of the provisions of Section 37 of the NDPS Act.
7. In this regard, it would be apposite to refer the Constitutional Bench decision in the case of State of Punjab v. Baldev Singh reported in AIR 1999 SC 2378 where the Hon’ble Apex Court categorically observed whether or not, safeguards provided in Section 50 which is mandatory in nature, have been duly observed, would have to be determined by the court on the basis of the evidence led at the trial. Taking into account the above proposition of law, a co-ordinate Bench of this High Court in CRM No.949 of 2015 held that the question of noncompliance of Section 50 of the NDPS Act, at the time of search and seizure, is a matter of trial and cannot be gone into while considering the question of bail.
8. Now, applying the same principle, we are of the opinion that even if in a case Section 52A of the NDPS Act is not complied with, the same cannot be a ground for granting bail to an accused where more than commercial quantity of contraband was recovered overlooking the mandate of Section 37 of the NDPS Act and is a pure question of trial.
9. Having regard to the fact that 650 gms. of heroin was recovered from a room of a Lodge, which was under the actual physical possession and occupation of these three petitioners, who were together there, and such quantity of contraband is double the commercial quantity and examining the materials relating to search and seizure in the light of Section 37 of the NDPS Act, we are unable to hold that there are reasonable grounds for believing that petitioners are not guilty of such offences and this application accordingly stands rejected.
10. The office is directed to immediately communicate this order to all the NDPS Courts in our State for their future reference.
(2017) 2 RCR(Criminal) 767