Qadirs vs State of U.P.

S.K. Verma, J.—These bail applications are being disposed of through common order. These are bail applications in Case Crime No. 310/94 u/s 20 of N.D.P.S. Act, Police Station Delhi Gate, District Aligarh; Case Crime No. 316 of 1994 u/s 21(1) of N.D.P.S. Act, Police Station Rohania, District Varanasi and Case Crime No. 141/94 u/s 21(1) of N.D.P.S. Act, Police Station Adampur District Varanasi.

Shrove of the irrelevant facts of Criminal Misc. Bail application No. 9037 of 1994 are that on 7.9.1994 S.I. Bhagirath Sharma Arresting Officer alongwith other Police personnel was on beat when he received information that a person was coming with Charus and could be arrested if prompt action is taken. The Arresting Officer tried to procure witnesses but nobody agreed to become a witness and then all the police personnel gave their search of each other and then the Arresting Officer mentioned that information cannot be given to any Gazetted Officer. He then proceeded alongwith the Informer to Nehru Hotel and taking shelter behind the Hotel they saw the applicant identified by the Informer who was arrested and was offered to be taken to a Gazetted Officer for search, the offer was refused and the 100 gms. of Charus was recovered.

The facts in Criminal Misc. Bail Application No. 11456 of 1994 and Criminal Misc. Bail Application No. 11457 of 1994 are almost similar.

The main contention of the learned Counsel for the applicant Sri. I.M. Khan is that since the information received was not reduced into writing hence the provisions of Section 42(1) of N.D.P.S. Act were not followed and bail should be allowed on this basis alone. The decision of this Court in Anil Singh v. State of U.P. 1994 U.P. Criminal Rulings 422, has been pressed into service in support of this argument. In that decision the decision of the Hon''ble Supreme Court in State of Punjab v. Balbir Singh JT 1994 SC 108 1994 U.P. Criminal Rulings 333, was considered and it has been remarked that because information received was not reduced into writing that ground was sufficient for bail. However the provisions of Section 43 of N.D.P.S. Act were not noticed which has resulted into aforesaid remarks and which gives an impression that in every case where information received is not reduced into writing the accused would become entitled to bail for non compliance of Provisions of Section 42(1) of the N.D.P.S. Act. In fact whether the provisions of Section 42 of N.D.P.S. Act would apply to the aforesaid facts or the Provisions of Section 43 of N.D.P.S. Act would apply was a question relevant for the purpose, but was not considered.

In Balbir Singh (supra) in paragraph 10 the Hon''ble Supreme Court has observed "we may mention here that Section 43 which deals with the power of seizure and arrest in public places is slightly different from Section 42 in certain respects. Under this provision any empowered Officer u/s 42 has the power to seize, detain, search or arrest in public place or in transit if he has reason to believe that an offence punishable under Chapter IV relating to such Drugs or Substance has been committed and seize any documents or any other article which may furnish an evidence of the commission of such offence and can seize any animal, conveyance or article liable to confiscation and can detain and search any person similarly. The empowered officer while acting u/s 43 need not record any reasons for his belief. This section also does not mention anything about the empowered officer having prior information given by any person or about recording the same, as compared to Section 42.

The intention of the Legislature in providing separate section namely Section 43 N.D.P.S. Act for dealing with power of seizure and arrest in public places was that the position in public places and in transit is slightly different. The Police Officer who has received information cannot return back to his Police Station to record the information in writing for fear of permitting the offender to escape or the evidence of the offence to be concealed. If he records the information in writing on a separate piece of paper and keeps it with himself that would not serve any purpose. Again without returning back to the Police Station concerned he cannot send a copy of the information received and reduced into writing to his immediate superior if he does not have any spare hand to do so while on beat or transit.

Sri. S.T. Siddiqui, Advocate, counsel for Jugender Singh in Criminal Misc. Bail application No. 11456 of 1994 and Sri. I.M. Khan, Advocate, counsel for the applicant in Qadir v. State (Criminal Misc. Bail application No. 9037 of 1994) have argued further that in both these cases the compliance of Section 50 of the N.D.P.S. Act has not been done in so far as the applicants were only asked whether they desired to be searched by Gazetted Officer. They were not informed that in the alternative they could also be taken to a Magistrate for search. According to this argument it was clear violation of Section 50. N.D.P.S. Act which requires that an accused person should be given an option of being searched by a Gazetted Officer or a Magistrate. In support of this argument the decision of Delhi High Court in Chameli Devi v. State 1994 (1) EFR 501, has been cited. After going through this decision it transpires that that decision was delivered in a Criminal appeal in which after recording the entire evidence the court came to the conclusion that the Appellant was entitled to benefit of doubt. To my mind omission to mention that the accused could be taken to Magistrate may be a mere slip or mistake which might be explained by the prosecution later during evidence. This is not the stage to consider this aspect. The applicants are, therefore, not entitled to get any benefit for alleged non-compliance of Section 50 of the N.D.P.S. Act.

Applying the aforesaid test and considering the facts and circumstances of these three cases it prima facie, appears that no case for bail is made out. The Criminal Misc. Bail application No. 9037 of 1994, Criminal Misc. Bail application No. 11456 of 1994 and Criminal Misc. Bail application No. 11457 of 1994 are rejected.

This judgment be placed in Criminal Misc. Bail application No. 9037 of 1994 and copies of the judgment be placed on the record of Criminal Misc. Bail application No. 11456 of 1994 and Criminal Misc. Bail Application No. 11457 of 1994.