- (1.) J. S. Mathur, J. In these two bail applications in cases under the Nar cotic Drugs and Psychotropic Substances Act, 1985 (herein after referred to as N. D. P. S. Act) similar questions of fact and law arise and as, such they are being disposed of by this common order.
(2.) IN Crl. Misc. Case No. 14475 of 1991 (Crime No. 249 of 1991 under Section 20-B of the Narcotic Drugs and Psychotropic Substances Act, P. S. Baberu, District-Banda) applicant Sewaram was arrested on 26-8- 1991 for the alleged offence under Section 20 (b) of the N. D. P. S. Act for allegedly being in posession of one Kilogram Ganja and two and a half Tolas Opium for the pur poses of selling. It is alleged that, while on patrol duty, Sub-INspector Harish Chandra Tripathi, S. O. got the information from an informer that the applicant was selling Ganja and Opium in front of the Government Opium Shop. The S. O. , accompanied with the public witnesses Ram Chandra Gupta and Shiv Mangal Chaubey, searched the applicant and found the aforesaid Ganja and Opium from a plastic bag, as also some money in another bag. This was sealed at the spot and recovery memo was prepared. A copy of the memo was given to the applicant but allegedly he tore it of. In Crl. Misc. Case No. 14120 of 1992 (Crime No. 278 of 1991 under Section 20 (b) Narcotic Drugs and Psychotropic Substances Act, 1985 P. S. Baberu, Distt. (Banda) the applicant was arrested on 10-9-1991 for an offence under Section 20 (b) of the N. D. P. S. Act and about four kilograms Ganja in 'pudia' and one kilogram Opium was recovered from a gunny bag in his Posses sion. It is said that, while on patrol duty, S. I. Harish Chandra Tripathi got the information from an informer that the applicant was selling Ganja and Opium in the Government Opium shop. He accompanied by the public witness Jagdish, searched the applicant and recovered the aforesaid Ganja and Opium from a bag. The recovery memo was prepared at the spot and a copy thereof was given to the applicant, but he allegedly tore it of. In both the cases, bail applications were moved before the learned Sessions Judge, Banda but he rejected the same vide his orders dated 8-1-1991 and 16-9-1991 on the ground that, considering the quantity of Ganja and Opium recovered and having regard to the provisions of Section 37 of the N. D. P. S. Act, these were not the fit cases for granting bail. Please regarding violation of Sections 42 and 50 of the N. D. P. S. Act were raised before him, but he rejected the submissions in regard there with the observation that it is a matter of evidence to be looked into at the stage of trial.
(3.) THE learned counsel for the applicants, Sri Rathore, has canvassed the same grounds before this Court as were canvassed before the- learned Sessions Judge. He has submitted that provisions of Sections 42 and 50 of N. D. P. S Act are mandatory and violations thereof must be presumed to have caused prejudice to the applicants. It is urged that the information received by S. I. H. C. Tripathi was not reduded in writing as is required under Section 42, N. D P. S. Act, nor the applicants were given any opportunity of getting themselves searched before a gazetted officer or a Magistrate as is provided under Section 50 of N. D. P. S. Act. It is submitted by him that the learned Sessions Judge should have considered these pleas on merit and consideration thereof could not have been postoponed until the trial. It. is also contended by the learned counsel that, if these two provisions are interpreted to mean that these mandatory requirements could be circumvented by the police officers or the other authorities that would be violation of the mandate under Article 21 of the Constitution. It is difficult to accept the view of the learned Sessions Judge (Special Judge) that the matters regarding the alleged violation of Sections 42 and 50 of the N D. P. S. Act or the other procedural safe guards, contained in Chapter-IV of the Act, could not be looked into at the stage of bail and that could be considered only at the stage of trial. The N. D. P. S. Act is different from other criminal statutes in as much as minimum sentence of ten years imprison ment and Rs. 1 lac fine is prescribed for offences under the Act and the burden of proof is thrust upon the accused (vide Sections 35 and 54 of the N. D. P. S. Act ). In view of these stringent and unusual provisions, the Legislature, in its wisdom, thought it fit to introduce certain salutory procedural safe guards to protect the accused against false or vexatious arrest. These are contained in Chapter-IV of the N. D. P. S. Act, more particularly in Sections 42 and 50 of the Act.;