Decided on July 25,1991

HAN CHAND Appellant


V.K.Mehrotra,A.C.J. - (1.) I have heard Shri K.S. Saini for the petitioner and Shri M.L. Chauhan, Asstt. Advocate General, for the State.
(2.) On the basis of the decision of the Supreme Court in Narcotic Control Bureau v. Kishan Lal and others1, it has been urged by Shri Chauhan that the restrictions contained in Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act), are applicable even where the prayer for bail is being considered by the High Court. He has also urged that there has been compliance with the requirement, inter alia, of Section 50 of the Act, as interpreted by a Division Bench of this Court in State of Himachal Pradesh v. Sudarshan Kumar etc.2. He says that the statement made in the case, as is clear from the case diary, by the Station House Officer, was that he had informed the accused-applicant that he has a right to make a request that he be taken to a gazetted officer before the search of his person was undertaken. Shri Chauhan has also urged that, at this stage, the court has only to see whether there was any material before it to come to a conclusion that the mandatory provisions of the Act had not been complied with and not to weigh the evidence. He has placed reliance upon the observations contained in para 21 of a judgment of the Bombay High Court in Anil kumar v. State of Maharashtra3, wherein, while considering the question of cancellation of bail, the High Court, inter alia, observed that: TI The investigation is in progress There is nothing on record to show that there is no compliance with the mandatory provisions. The factual aspect has I not been raised either .before the Sessions Judge or in the revision petition. Thus prima facie the learned Sessions Judge was quite justified in cancellation of the bail TI Shri Chauhan has also emphasised that the trial is fixed before the court below on August 13, 1991 for the entire prosecution evidence as is mentioned in the order dated June 29, 1991, rejecting the prayer for bail made before him by the petitioner. He has also pointed out that in the heading of this order, however, it has been mentioned that the trial was fixed for August 22, 1991 in the court of Sessions Judge, Kullu.
(3.) What has been urged, in reply, by Shri K.S. Saini, appearing for the applicant, is that implicit reliance cannot be placed on the statement made by the Station House Officer even for the purpose of deciding whether the petitioner deserves to be released on bail or not, as observed by a Division Bench of the Punjab and Haryana High Court, in para 16 of its judgment, in Amrit Singh v. State of Haryana4. In that case, the matter was being considered by the Bench in an appeal against the conviction of the appellant for being found in possession of 4 kgs. of opium. The learned Judges of the Bench, after considering the evidence in the case, recorded a finding that there could be no escape from the conclusion that violation of the provisions of Section 50 of the Act, in the case of appellant Amrit Singh, stands writ large. They also observed that: This and the other circumstances, as pointed out earlier, rendered the conviction of the appellant wholly unsustainable and it is accordingly hereby set aside. What was urged with some emphasis by Shri Saini was that the principle deducible from the observations made by the Division Bench in the case of Amrit Singh, was that once it is found that there is violation of Section 50 of the Act, the court should take the view that an accused person would be entitled to grant of bail on a prima facie satisfaction of the court that there was such violation. Shri Saini has also placed reliance upon another Division Bench judgment of the Punjab and Haryana High Court in Kuldip Singh v. State of Haryana5. That, too, was a case where the High Court was considering the matter in an appeal against the conviction of Kuldip Singh and the sentence awarded to him. In para 6 of the judgment, upon which the learned counsel placed reliance in particular, the observations are to the effect that the provisions of Sections 42 and 57 of the Act were mandatory in character and that these provisions have to be strictly construed yet there is no scintilla of evidence on record to show the compliance of the same in this caseTT.;

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