- (1.) U. K. Varma, J. This is an application for bail on behalf of Ramesh Kumar alias Raju. It is alleged that at 2,50 p. m. on 23- 12-1989 when the applicant was waiting to board a train on the platform No. 5 of the Gorakhpur Railway Station six packets of Charas weighing 8 kg. worth Rs. 2,40,000 for those dealing in this contraband had been recovered by the Station House Officer Abhai Singh. The report of the incident was lodged within an hour at 13. 45 p. m. in the Police Station G. R. P. , Gorakhpur. The counsel for the applicant argued that the alleged search and recovery being illegal, the appli cant was entitled to bail. He emphasised that the officer making the search was not so empowered by the State Government under Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and further that there had been a violation of Section 50 of the Act as no offer prior to search had been made to the applicant to exercise the option to get himself searched before a Gazetted Officer of any of the depart ments mentioned in Section 42 or by the nearest Magistrate, He referred to the decision of the Rajasthan High Court in Prithvi raj v. State in Criminal Appeal No. 124 of 1988 decided on August 16, 1989 and to a decision of the Himachal Pradesh High Court in State of Himachal Pradesh v. Sudarshan Kumar reported in 1989 CRLJ at page 1412.
(2.) I have given my anxious considerations to the contentions of the counsel for the applicant. The Section 43 of the Act as is the title of this section, deals with power of seizure and arrest in public places and so is applicable to the facts of the case for the seizure in question was allegedly made at a public place viz. the platform of the Gorakhpur Railway Station. In Section 43, the obligation to seize narcotic drug or psychotropic substance in respect of which an offence is believed to have been committed under Chapter IV has been assigned to an officer or any of the departments mentioned in Section 42. In this section there is no specific reference to prior authorisa tion of that officer as we find in Sections 42 and 49 which deal with search of a building or conveyance or enclosed place or animal. Incase on the strength of the wordings of Section 50, it was to be believed that the officer referred to in Section 43 has also to be an authorised officer, it may be noted that the State of Uttar Pradesh vide Notification No. 3555-E-2/xiii-23-85, dated October 8, 1986 has authorised officers of the Excise or Police department not below the rank of Inspector and the Revenue Department not below the rank of Tahsildar to exercise the powers under Section 42 of the Act. This being the position it would not be justifiable to jump to the conclusion that the search and seizure in the instant case had been made by an officer who was not authorised although he has been described to be an Inspector in this application for bail. It next is to be seen that the Supreme Court in State of Maharashtra v. Natwar laldamodar Das Soni reported in AIR 1980 SC at page 593 had held that illegal search was not to affect the validity of the seizure or further investigation by the custom authorities or the validity of the trial. Again in the case of Dr. Pratap Singh and another v. Director of Enforcement, Foreign Exchange Regulations Act and others reported in AIR 1985 SC at page 989 it has been observed that illegality of the search does not vitiate the evidence collected during such illegal search. The arguments of the counsel for the applicant as such on the strength of the rulings of the Rajasthan and the Himachal Pradesh High Court dealt with above that the applicant cannot at all be held guilty in view of the alleged illegal search cannot be accepted. Each case will have to be judged on the merits of its evidence and circumstances, "i he quantity of Charas recovered in this case has been shown to be large. The report too had been made promptly. There is nothing on the record to show that the Station House Officer Abhai Singh had a motive for false implication. Further at present, it could not also be definitely said that the Inspector was in a position to give the option of search to the appli cant before the Gazetted officer of the department mentioned in Section 42 or a Magistrate and he did not do so. There may be circumstances as could indicate that by his own conduct the applicant was not inclined to get the search made by an officer referred to in Sect ion 42 or by a Magistrate. The evidence is yet to be recorded in this case. Since there is a prima facie good case against the applicant, his application or bail is rejected. Application dismissed. .;