State Of Rajasthan vs Parmanand And Another

The petitioner is seeking bail in connection with a case relating to offence punishable under Sections 21(c)/29 of the Narcotic Drugs and Psychotropic Substances Act.

Mr. Imam, learned advocate for the petitioner, submits that 260 grams contraband article namely, heroin, was allegedly seized from the exclusive possession of the petitioner. Mr. Imam further submits that the petitioner is in custody for the last 238 days and chargesheet has already been submitted.

Mr. Imam also submits that the alleged seizure was made in the presence of Circle Inspector of Police, Lalbag, in clear violation of the provision of Section 50(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Mr. Imam relies on a decision of the Hon'ble Supreme Court in the case of State of Rajasthan vs. Parmanand and Another reported in (2014) 2 C Cr. LR (SC) 319 (paragraph 19) and submits that the accused person should have been taken to the nearest Magistrate or the nearest Gazetted Officer so that the search could be made in presence of an independent officer. The relevant extracts from the aforesaid decision are set out hereunder:

"19.....................The idea behind taking an accused to the nearest Magistrate or the nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer....".

The learned advocate for the State submits that the concerned Circle Inspector of Police is a Gazetted Officer in whose presence search was conducted and the said police officer should also be taken as an independent officer.

We are unable to accept the aforesaid submission of the learned advocate for the State.

The Hon'ble Supreme Court has specifically held in the case of State of Rajasthan vs. Parmanand and Another (supra) that the accused should be taken to the nearest Magistrate or the nearest Gazetted Officer in order to give the said accused a chance of being searched in the presence of an independent officer.

In the present case, it is not in dispute that the search was not conducted in the presence of a Magistrate or any other Gazetted Officer apart from a police officer.

Furthermore, it has been submitted by the learned advocate of the petitioner that in the present case investigation is complete and the chargesheet has been submitted.

Having considered the materials available in the case diary and also considering the principles of law laid down by the Hon'ble Supreme Court in the case of State of Rajasthan vs. Parmanand and Another (supra) and also considering the fact that the charge sheet has already been submitted and the petitioner is in custody for the last 238 days, we are of the opinion that further detention of the petitioner is not necessary.

Therefore, the accused/petitioner namely, Yeakub Sk., be released on bail upon furnishing a bond of Rs. 10,000/‐ (Rupees Ten Thousand) with two sureties of like amount, one of whom must be local, to the satisfaction of the learned Judge, Special Court under the Narcotic Drugs and Psychotropic Substances Act, Murshidabad at Berhampore.

The application for bail is, thus, allowed.