- (1.) R. R. K. Trivedi, J. By this petition, petitioner Yogesh Kumar alias Tillu has challenged the legality of First Information Report dated 12th September, 1992 which has been registered as Crimes No. 416 to 420 of 1992 under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No. 61 of 1985), hereinafter referred to as 'act', and has prayed that the aforesaid First Information Report be quashed and the respondents be restrained from proceeding with the investigation and arrest of the petitioner on the basis of the same. In alternative, it has also been prayed that in case this Court comes to the conclusion that the interference with the aforesaid First Information Report is not possible then the bail application of the peti tioner may be directed to be considered same day by the competent court in the event of petitioner's surrendering before the competent court for the offences disclosed in the First Information Report. The legality of the First Information Report has been questioned mainly for non- observance of certain conditions required before making search and seizure of the goods possession of which constitutes offence under the Act and the consequent arrest under Sections 42 and 50 of the Act.
(2.) THE facts giving rise to this petition are that on 11-9-92 Station House Officer, G. P. Yadav while he was on duty with other police officials at Bus Station of town Sumerpur, district Hamirpur, received information that the petitioner along with other persons is inside his residential house and is possessed of large quantity of Ganja, Opium, Charas and Bhange and is negotiating to sell the same. He also received information that in case swift, prompt and immediate action is not taken the aforesaid articles shall be transferred and removed to other place. THE aforesaid Police Officer placing reliance on the aforesaid information proceeded to the site and conducted the raid at about 10. 00 p. m. in the night and recovered therefrom large quantity of Narcotic substances. It is further disclosed from the First Information Report that on seeing the police, petitioner ran away with the bag in his hand. He was chased by the police. However petitioner made his escape good after throwing the bag in his hand from which 7 kgs. of Opium was recovered. Four persons who were sitting inside the same, namely, Sukkhu, Ram Singh, Lallu and Surendra Kumar were arrested with the large quantities of narcotic goods mentioned against them, which are as under : I, Sukkha son of Dulla. . . Two bags of Bhang weighing about 80 kgs. 2. Ram Singh son of Behari Yadav. . . Four bags of Ganja weighing about 1 qts. Lallu son of Ram Nath. . . 2 bags and 1 katta (half bag) of Ganja weighing about 80 kgs. , 1 bag Bhanga weighing 40 kgs. Phatt alias Surendra son of. . . 1 S. B. B. L. gun factory made with Gaya Prasad. some cartridges and Charas 1430 grams in a polythine bag and tin box with certain weighing instru ments and some coins were reco vered. It has been further mentioned in the First Information Report that the afore said persons were required to show the licence for possessing the aforesaid contraband goods and the gun but they could not produce any such authorisa tion. On being asked whether they want to be produced before the Magis trate or a Gazetted Officer, they refused. On the basis of the aforesaid recoveries a memo of recovery was prepared at the spot and on the basis of the same the First Information Report was lodged at about 12. 30 a. m. in the night. 3. The learned counsel for the petitioner has submitted that the aforesaid Police Officer has failed to take down in writing information received by him as required under Section 42 (1) of the Act and further as the search was conducted between sun-set and sun-rise he has failed to record the grounds of his belief that in case immediate search was not taken it shall afford the opportunity for the concealment of evidence or facilitate escape of offender, as otherwise search during sun-set and sun-rise could only to done under the search warrant or authorisation issued by the competent Magistrate or Officer as required under the Proviso of Section 42 of the Act. The learned counsel has also submitted that so far persons arrested at the spot with narcotic substances are concerned, the compliance of Section 50 of the Act has not been done as they were not asked to express themselves as to whether they wanted to be searched in presence of the Gazetted Officer or the Magistrate. The learned counsel has further submitted that the provisions contained in Sections 42 and 50 of the Act are mandatory and the Police Officer is under the legal obligation to fulfil all the conditions before making the search and seizure and arrest under the Act. As the mandatory provisions have not been complied with the entire action taken is vitiated in law and the petitioner cannot be prosecuted for the same as First Information Report is nullity. The respondents cannot be permitted to proceed with the investi gation and to arrest the petitioner during investigation for the alleged offences and the First Information Report is liable to be quashed. The learned counsel has taken us through various provisions of the Act and has submitted that as provisions of the Act are very harsh and provide for a severe punishment and also contained strict provisions regarding bail, etc. The observance of the requirement ought to have been done which is a valuable safeguard against vexatious, arbitrary and mala fide prosecution. It has been further submitted that if petitioner is allowed to be prosecuted on the basis of the First Informa tion Report it shall be in violation of the fundamental rights of the petitioner guaranteed under Article 21 of the Constitution. In support of his submissions learned counsel for the petitioner also has placed reliance on various authori ties which shall be referred to and discussed at relevant places. 4. Learned Standing Counsel, on the other hand, has submitted that from the perusal of the First Information Report and from the memo of recovery it is clear that the provisions of Sections 42 and 50 of the Act have been substantially complied with and there is no breach of the aforesaid pro visions. It has been further submitted that as petitioner ran away from the spot and escaped from the police, there was no question of compliance of Section 50 of the Act so far as he is concerned. The persons who were arrested did not require to be searched in presence of the Gazetted Officer or the Magistrate. So far as compliance of Section 42 of the Act is concerned the learned Standing Counsel has submitted that the Police Officer has mentioned in so many words his grounds of beliefs that in case search was not immediately conducted, it would have afforded opportunity to the offender to escape and to conceal evidence. Learned counsel for the State has placed reliance on cases Surajmal Kanhaiyalal Soni v. State of Gujarat, 1991 (1) EFR 58 (Guj) : 1991 JIC (Digt) 42 (Guj) ; Santokh Singh v. State, 1991 Cr LJ 147 (Delhi) : 1991 JIC (Digt) 12 (Del) and Ramesh Kumar alias Raju Kishun Kumar v. State, 1992 (2) E. F. R. 49 : 1992 JIC 356 (All), by which a learned Single Judge of this Court after relying on the view expressed by Hon'ble Supreme Court refused to grant bail for violation of Sections 42, 43 and 50 of the Act.
(3.) WE have heard learned counsel for the petitioner and learned Stand ing Counsel and given our serious considerations to the rival contentions. The important question involved in the present writ petition is as to whether for the alleged breach of Sections 42 and 50 of the Act, which fall under Chapter V dealing with the procedure regarding entry, search seizure and arrest by various authorities of the suspected offenders will render search and recovery of the contraband goods illegal and the investigation consequent thereof and all follow up actions should be quashed at this stage. Strong reliance has been placed by the learned counsel for the petitioner in case of K. L. Subhayya v. State of Karnataka, AIR 1979 SC 711 which has been followed by this Court in case of Divakar Srivastava v. Station Officer, P. S. Husainganj, Lucknow and others, 1990 LLJ 240 and Kamlesh Pratap Singh v. State of Uttar Pradesh (sic) All Danda Nirnaya 593 ; Mahesh v. Union of India, 1986 LLJ 142 for quashing the First Information Report and the investigation in consequent thereon. Learned counsel for the petitioner has also relied on the case 1992 (2) EFR 32 : 1992 JIC 492 (All)-Sewa Ram v. State, in which a learned Single Judge of this Court discussed the provisions of Sections 42 and 50 of the Act in detail and after noticing certain breaches granted bail. Learned counsel has also referred to case of Bhanu Pratap v. State, Lucknow Cr R 115. Learned counsel for the petitioner has also placed reliance on a Division Bench view of this Court in case of M/s. Vikash Books Agencies and others v. State of U. P. and others, in Civil Misc. Writ Petition No. 9549 of 1992, decided on 27 April, 1992. The Division Bench in this case quashed the First Information Report and the charge-sheet on the ground that the Magistrate had no competence to issue a search warrant and for that matter to direct search under Section 103 of the Code in respect of the books in question. The Division Bench placed reliance in case of V. S. Kuttan Pillar v. Ramakrishanan, AIR 1989 SC 185. The learned counsel has also placed reliance on the view expressed by other High Courts of the country which are being mentioned below of Paul Osumba v. State of Haryana, 1991 (2) EFR 19 (Punjab and Haryana); State of Himachal Pradesh v. Sudershan Kumar and others, 1990 (1) EFR 15 (Him. Pra.), and Md. Jaimlabdin alias Nahamacha and etc. v. State of Manipur and etc. , 1991 (2) EFR 404 (Gauhati) The learned counsel for the petitioner has also referred to and placed reliance in case of State of Haryana v. Chaudhary Bhajan Lal, JT 1990 (4) SC p. 650 : (1990) 2 JIC 997 (SC), guide-lines laid down therein for quashing prosecution at the threshold.;