U.K.Verma, J. - (1.) Heard Sri V.P. Srivastava, counsel for the applicant and Sri Shivaji Misra, counsel for the Union of India.
(2.) The counsel for the applicant argued that the applicant being a driver could have no knowledge about the contents of the bags which he was carrying by the truck No. U.G.M. 7945. It was further submitted that the recovery had not been made in accordance with the provisions of sections 42, 43 and 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and as such the successful prosecution of the applicant was doubtful. The recovery in the instant case had been by the Inspector of Customs, Basti. Section 43 which is applicable to the facts of the case envisages that any officer of any of the departments mentioned in section 42 may (a) seize, in any public place or in transit, any Narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance any animal or conveyance or article liable to confiscation under this Act; any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV; and, if such person has any narcotic drug or psychotropic substance in his possession to be unlawful, arrest him and any other person in his company. Explanation: For the purposes of this section, the expression public placeT includes any public conveyance, hotel, shop, or other places intended for use by, or accessible to, the publicT The question is whether the inspector of the Customs Department, Basti, camp at Naugarh, could be credited with the authority of entry, search-seizure and arrest without warrant or authorisaton. The Ministry of Finance (Department of Revenue), Notification No. S.O. 823 (d) dated November 14, 1985, published in the Gasette of India, Extraordinary, Part II, contemplates that for exercising the powers and performing the duties specified in section 42 of the N.D.P.S. Act, 1985, the officers of the Customs Department have to be above the rank of Inspector and as such the alleged recovery in question could not be said to have been made by a competent officer. Besides it was pointed that there is nothing to show that before proceedings to search, the customs Inspector had recorded in writing the grounds where under he had proceeded to make the search without authority. The counsel for the Union of India lamented that in the absence of instructions he could not show that the copy of the recovery memo filed by the applicant was not complete. The Union of India had already been allowed sufficient time and several adjournments had been granted on the request of its Standing Counsel, Sri Shivaji Misra. I have no reasons, therefore, to doubt that the copy of the recovery memo filed by the applicants counsel was incomplete and any relevant fact is being concealed. The over all circumstances of this case, some of which have been dealt with above, do show that the applicant may have a good defence.
(3.) I, therefore, direct the applicant to be released on bail, on his furnishing personal and surety bonds to the satisfaction of the C.J.M. Basti in the case crime no, nil, under sections 8/25/43 Narcotic Drugs and Psychotropic Substances Act, 1985, P.S. Custom Seems Ikaai, Ravgarh, District, Siddharth Nagar. Bail application allowed.;