- (1.) J. K. Mathur, J. Almost total obfuscation of principles which govern the grant of bail caused by differing subjective responses by different Branches without disclosing any reason, have made it difficult to identify the thread of rationality in the grant or' bail and that has led to this reference to a larger Bench by a learned Single Judge, seeking answers to the following questions : " (1) Whether it is incumbent on the arresting officer to disclose to the accused, while affecting arrest under Section 50 of Narcotic Drugs and Psychotropic Substances Act of a person suspected to be in possession of narcotic or psychotropic substances, that he is entiled to be produced before a Gazetted Officer or a Magistrate for search ? If so, whether such arrested person is entitled to bail under Section 37 of the said Act ? (2) Under what circumstances bail under Section 37 of the Narcotic Drugs and Psychotropic Substances Act can be granted to a person accused of an offence under Section 18 of the said Act if the provisions of Article 22 (1) of the Constitution of India. Sec tion 50 (1) of the Code of Criminal Procedure, Sections 42, 52 and 57 of Narcotic Drugs and Psychotropic Substances Act are not complied with ?" We have heard Shri S. S. Chauhan, Kunwar Mridul Rakesh and Sri Arun Sinha on behalf of the petitioners, Sri Bireshwar Nath, Government Advocate representing the State and Sri Waseem who appeared on behalf of the Union of India at length. To effectively answer the first question with clarity, it is necessary to find: (i) whether an officer acting under Section 50 of the Narcotic Drugs and Psychotropic Substances Act is bound to inform a suspect that he is entitled to be produced before a Gazetted Officer or a Magis trate for being searched; (ii) if so, what is the effect of not so informing ; (iii) whether not informing the suspect would be a sufficient reason for grant of bail; and (iv) what is the effect of provisions of Section 37 of Narcotic Drugs and Psychotropic Substances Act on the question of grant of bail in such a case ?
(2.) ON behalf of the petitioners it was urged that any officer proposing to conduct a search of any person for suspected possession of narcotic drugs or psychotropic substances has to inform the person that he has a right to select the officer before whom he may be searched, under Section 50 of the Narcotic Drugs and Psychotropic Substances Act (herinafter to be referred to as the NDPS Act ). The learned Government Advocate, on the other hand, contended that there was no such duty to inform implicit in Section 50. This needs inter pretation of Section 50 of the NDPS Act which runs as follows ; "50. Conditions under which search of persons shall be conducted.- (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1 ). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (. 4) No female shall be searched by anyone excepting a female. " According to this provision whenever a person is to be searched under the provisions of Section 41, 42 or 43, if such person so requires, he has to be taken to the nearest Gazetted Officer of the departments mentioned in Section 42 or to the nearest Magistrate.
(3.) SUCH Gazetted Officer or Magistrate can, if he sees no reasonable ground for search, discharge, the person. He shall otherwise conduct the search in his presence. This provision is a departure from the normal provisions of law where certain officers are authorised to conduct searches and whenever they have reason to suspect commission of a crime, they themselves can carry out search in accordance with law.;