- (1.) S. K. Verma, J. All these bail applications relate to offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act for shot) and are being disposed of by this common order because similar questions of law have been raised in these cases.
(2.) THE main submission made on behalf of the learned counsel for the applicants in these cases is that in view of the decision of this court in Sena Ram v. State of U. P. , 1992 Criminal Law Journal 2929 : 1992 JIC 4*2 (All) and also in view of decision of this Court in Criminal Misc. Bail Application No. 14479 of 1992 Dadan Singh v. State of U. P. , 1913 JIC 300 (AH) the legal position is as follows : " (a) THE provisions of Sections 42 and 50 of the NDPS, Act are man datory and violation of any of these provisions will raise a pre sumption of prejudice. (b) THE prosecution may show with reference to the appropriate evi dence at tae stage of bail and in the trial that compliance of these provisions was, in fact, made. (c) THE prosecution could also place before the Court reliable evidence to show that irrespective of the violation of these provisions, recovery was made from the accused and no prejudice has, in fact, been caused. (d) In regard to Section 50 of the NDPS Act, the police-officer is bound to inform the accused that he could have his search made before Magistrate or any other Gazetted Officer referred to in this section. (e) Where provisions of Section 42 or 50 of the NDPS Act have been violated and it is not shown that no prejudice was, in fact, caused, mere alleged recovery of large quantity may not be considered to be sufficient to deny bail. " It has further been argued that it was also upheld in Dadan Singh's case on the basis of Dasrath Lal v. State of U. P. , 1992 (2) EFR 486 : 1992 JIC 739 (All) (LB) that where the mandatory provisions are complied with, then only the provisions of Section 37 of the NDPS Act will come into play. From the prosecution side reliance has been placed on the decision of the Supreme Court in Narcotic Control Bureau v. Kishanlal and others, 1991 SCC 265 : 1991 JIC 275 (SC) and it has been argued that Section 37 as amend ed starts with a non-obstante clause stating that notwithstanding anything con tained in the Code of Criminal Procedure, 1973, no person accused of an offence prescribed therein shall be released on bail unless the conditions con tained therein were satisfied. The NDPS Act is a special enactment and as already noted it was enacted with a view to make stringent provisions for the control and regulation of opetations relating to Narcotic Drug and Psychotropic Substances. That being the underlying object and particularly when the provisions of Section 37 are in negative terms, limiting the scope of applicability of the provisions of Cr. P. C. regarding bail, it cannot be held that the High Courts powers to grant bail under Section 439, Cr. P. C. are not subject to the limitation mentioned under Section 37 of the NDPS Act. The non-obstante clause with which the section starts should be given its due mean ing and clearly it is intendend to restrict the powers to grant bail. In case of in consistency between Section 439, Cr. P. C. and Section 37 of NDPS Act, Section 37 prevails.
(3.) WITH due respect to the learned Judges of this Court deciding Dadan Singh's case (supra), Sewa Ram's case (supra) and Dasarath Lal's case (supra), it may be stated that in those decisions the Supreme Court decision in Nar cotic Control Bureau v. Kishanlal, was noticed. The decision of the Supreme Court is binding on all Courts under Article 141 of the Constitution of India. Hence it is evident that the provisions of Section 37 of the NDPS Act which are intended to restrict the powers to grant bail have to be taken into account inspite of the fact that the procedure followed during search and seizure was illegal and provisions of Sections 42 and 50 of NDPS Act were no complied with. It is noteworthy that Section 37 of the NDPS Act makes no excep tion, hence even if the procedure prescribed under Sections 42 and 50 of NDPS Act has not been followed, while considering bail, the provisions of Section 37 of the NDPS Act have to be borne in mind. In this respect it will be pertinent to refer to a decision of the Supreme Court in Pooran Mai v. Direc tor of Inspection (Investigation) of Income Tax, New Delhi and others reported in AIR 1974 SC 348. In that case the Hon'ble Supreme Court after noticing the provisions of the Constitution of India and the law of evidence and various American and English judgments concluded that the evidence collected on the basis of the illegal search and seizure cannot be shut out from being considered by the courts against the person from whose custody the evidence was collected. The Hon'ble Supreme Court observed as under : "in other words, search and seizure for the purposes of preventing or detecting crime reasonably enforced was not inconsistent with the constitutional guarantee against search and seizure. It was held in that case that the search of the appellant by a Police Officer was not justified by the warrant nor was it open to the officer to search the person of the appellant without taking him before a Justice of the Peace. Neverthless it was held that the Court had a dis cretion to admit the evidence obtained as a result of the illegal search and the constitutional protection against search of person or property without consent did not take away the discretion of the Court, Following 1955 AC 197 the Court held that it was open to the court not to admit the evidence against the accused if the Court was of the view that the evidence had been obtained by conduct of which the prosecution ought not to take advantage. But that was not a rule of evidence but a rule of prudence and fair play. It would thus be seen that in India, as in England, where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out. ";