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Report No. 155

5.3. Interpretation qua the bail provisions under the NDPS Act.-

On the question of grant of bail to the persons accused of the commission of the offences under the Act, in Narcotic Control Bureau v. Kishan Lal, AIR 1991 SC 558, the Supreme Court laid down the following propositions of law:-

"Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (as amended) starts with a non-obstinate clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein are satisfied. The NDPS Act is a special enactment and was enacted with a view to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances.

That being the underlying object and particularly when the provisions of section 37 of NDPS Act are in negative terms limiting the scope of the applicability of the provisions of Cr. P.C. regarding bail, it can not be said that High Court's powers to grant bail under section 439, Cr. P.C. are not subject to the limitations mentioned under section 37 of the NDPS Act."

In Rajnikant Jivanlal Patel v. Intelligence Officer, Narcotics Control Bureau, New Delhi, AIR 1990 SC 71, the accused, arrested for offences punishable under sections 21,23 and 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985 were enlarged on bail by the magistrate on failure of the prosecution to present the challan within 90 days under proviso to section 167(2), Cr. P.C. The High Court cancelled the bail order. While upholding the order of the High Court, the Supreme Court observed:

"An order for release on bail under proviso (a) to section 167(2) may appropriately be termed as an order-on-default. Indeed, it is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period. The right to bail, under section 167(2), proviso (a) thereto, is absolute. It is legislative command and not court's discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail.

But at that stage, merits of the case are not to be examined. Not at all. In fact, the magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds. The accused cannot, therefore, claim any special right to remain on bail. If the investigation reveals that the accused has committed a serious offence and charge-sheet is filed, the bail granted under proviso (a) to section 167(2) could be cancelled."

5.4. On the question of discharge of the accused, the Supreme Court in State of Himachal Pradesh v. Pirthi Chand, 1996 (1) SCALE 48 has laid down the following principles:

"The evidence collected in a search in violation of law does not become inadmissible in evidence under the Evidence Act. The consequence would be that evidence discovered would be to prove unlawful possession of the contraband under the Act. It is founded in Panchnama to seize the contraband from the possession of the suspect/accused.

Though the search may be illegal but the evidence collected i.e., Panchnama etc. nonetheless would be admissible at the trial. At the stage of filing charge-sheet it cannot be said that there is no evidence and the Magistrate or the Sessions Judge would be committing illegality to discharge the accused on the ground that section 50 or other provisions have not been complied with. At the trial an opportunity would be available to the prosecution to prove that the search was conducted in accordance with law.

Even if search is found to be in violation of law, what weight should be given to the evidence collected is yet another question to be gone into. Under these circumstances, the learned Sessions Judge was not justified in discharging the accused, after filing of the charge-sheet holding that mandatory requirements of section 50 had not been complied with."

In some of the responses received and also during discussions in the workshops it was pointed out that a plain reading of the above judgment, particularly para 3 regarding the applicability of section 50 would create a doubt whether the Supreme Court laid down that the provisions of section 50 would also apply to search of a place. It may be mentioned that it was a case of search of a place and not of a person. Therefore, the provisions of section 50 do not apply. The section itself makes it clear that the provisions contained therein would apply only to search of a person.

The reference to section 50 here and there in the judgment was in the context of the discharge of the accused by the sessions court at a preliminary stage. We, however, feel that the Supreme Court may clarify the position by demarcating the parameters between "search of a place" and "search of a person" in the context of applicability of section 50 to the effect that it applies only to "search of a person" and not to the "search of a place", so as to make the law clear, particularly for the guidance of the lower courts.

5.5. In State of Punjab v. Balbir Singh, 1994 (1) 753, the Supreme Court while examining the steps to be taken by the investigating officer went into the question as to which provisions are mandatory and which are directory and concluded thus:-

"(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 offences 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 officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.

(2A) Under section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences.have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal.

Likewise only empowered officer or duly authorised officers as enumerated in sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.

(2B) Under section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction.

(2C) Under section 42(1) the empowered officer if 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 these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.

(3) Under section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But If there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.

(4A) If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr. P.C. falls to strictly comply with the provisions of sections 100 and 165, Cr. P.C. including the requirement to record reasons, such failure would, only amount to an irregularity.

(4B) If an empowered officer or an authorised officer under section 41(2) of the Act carries out a search, he would be doing so under the provisions of Cr. P.C. namely sections 100 and 165, Cr. P.C. and if there is no strict compliance with the provisions of Cr. P.C. then such search would not per se be illegal and would not vitiate the trial.

The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.

(5) On prior information the empowered officer or authorised 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) The provisions of sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case."

It may be pointed out at this stage that Kerala High Court in V. Mohd. Bashir v. State, 1991 (2) Crimes 686 has misread the judgment of the Supreme Court in holding that the search made under section 43 in respect of section 50 is not attracted.

5.6. We have considered the proposal of the Department of Revenue that if the empowered officer, while searching a person is of the view that taking the person to the nearest gazetted officer/magistrate would result in the delay in search or would give opportunity to the person to disassociate him from the contraband, the search can be conducted before two or more independent and respectful persons of the locality or of the adjoining locality. We are, however, of the view that to safeguard the interest of the innocent persons, particularly where there is a minimum mandatory punishment under the Act, such amendment is not desirable.

The above discussion makes it clear that the empowered officers have important duties to perform under the provisions of the Act, particularly when section 42 and section 50 are held mandatory. Even in respect of the provisions held directory they cannot slacken, although mandatory provisions of section 42 and section 50 are most important and must be complied with by the empowered officers. The responses to the questionnaire, and the views expressed in workshops also suggest that for carrying out search effectively in a practical and meaningful manner some changes in section 50 are necessary. We are of the view that the amendment of section 50 is necessary.

The nature of non-compliance of section 50 leading to many acquittals has to be examined carefully from the point of view of bringing about suitable amendments. Section 50 lays down that any duly authorised officer who is about to search any person, if he so requires, take him without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest magistrate and if such requisition is made by the person to be searched, the authorised officer concerned can detain him until he can produce him before such Gazetted Officer or the Magistrate and thereafter the search should be conducted.

It is held that it is a valuable right given to such a person and that though the section does not say so in clear terms, yet the person must be told about his right and failure to do so results in non-compliance of section 50. Whether such person was informed or not would always be a question of fact depending upon the oral assertions and counter assertions made by the accused and the searching officer and the non-compliance has led to many acquittals.

The other types of non-compliance resulting in acquittals as noticed by the courts are of highly technical nature. In some cases, the accused were acquitted on the grounds that the notice given by the investigating officer only mentioned the word "magistrate" and in some cases only the word "gazetted officer", yet in other cases words "magistrate or gazetted police officer". In such cases, the accused were acquitted by holding that the notice was not complete and in consonance with the provisions of section 50 of the Act.

Although taking of such technical view by the courts may be a debatable issue but to check such lapses, on the part of the empowered officers, resulting in such acquittal, the Commission feels it necessary to suggest suitable amendments in section 50 of the Act to clear all the misgivings of the scope of section 50. Also keeping in view the difficulties expressed in the replies to the questionnaire and the discussions held in the workshops regarding the possibilities of throwing of the contraband by the person or the planting of the same while in transit to the nearest Magistrate or Gazetted Officer. We are of the view that amendments in section 50 of the NDPS Act may be on the following lines:-

(a) in sub-section (1), after the words 'he shall' and before the words 'if such person', the following words shall be inserted, namely-

"inform such person that he has a right to be searched in the presence of a gazetted officer or the magistrate referred to in section 41; and"

(b) in sub-section (1), for the words "or to the nearest magistrate", the following words shall be substituted, namely-

"or to the nearest magistrate referred to in section 41 of the Act, as the empowered officer may deem fit."

This would amount to substantial compliance.

Drugs and Psychotropic Substances Act, 1985 Back

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