- (1.) Heard Sri D.S. Mishra, learned counsel for the revisionist and Sri Vimlendu Tripathi, the learned A.G.A.
(2.) This criminal revision is preferred against the order dated 1.10.2015 passed by the Addl. Sessions Judge, Jalaun at Orai in SST No. 9/15 (State vs. Dr. Mahesh Chandra Gupta and another) rejecting a discharge for offences under Section 21/22 NDPS Act. An FIR as Case Crime no.3928 of 2014 under Sections 21/22 NDPS Act came to be registered at P.S. Kotwali, Orai on 12.11.2012 on the basis of a recovery memo alleging that a tip off was received that a courier agency is going to deliver a packet containing heroin at a particular address. Acting on the aforesaid information, the police concerned reached the designated place and at the pointing of the informer arrested two individuals, i.e. the revisionist and one Danish Ali son of Majid Ali with a packet at around 8:45 P.M. On a query as to the content of the packet, revisionist informed that it is "heroin", which is sold as medicine by his son Sunil Kumar Gupta. Upon being informed that as this is an offence under the NDPS Act he has a right to be searched either in the presence of a Gazetted Officer or a Magistrate, to which he replied that as he happens to be an MBBS doctor, he has no objection, if search is conducted by a gazetted police officer. An information to this effect was sent through RT set to the C.O, Orai, who arrived at 9:15, interrogated the accused and the contraband was handed over to him. The seized contraband weighed around 2 Kg, which as per Scientific Assistant Field Unit, prima facie, appeared to be "heroin", thereafter a 50 gm sample was taken and sent for chemical analysis. After investigation, a charge sheet was laid against the applicant under Section 21/22 of the NDPS Act, case committed to Sessions. An application u/s 227 CrPC claiming discharge was filed for want of non-compliance of Sections 41/42 and 50 of the NDPS Act, which came to be rejected under the order impugned on the ground that a plea of discharge based on defence evidence, cannot be made a subject matter of discharge.
(3.) The learned counsel for the revisionist submitted that despite a specific plea in the discharge that in the absence of non-compliance of Sections 41/42 and 50 of the Act, the proceedings are liable to be quahed, the court below did not advert on the said issue. He further submits that such non-compliance vitiates entire pending proceedings and the revisionist cannot be permitted to face such a trial. He placed heavy reliance on a judgement of the Apex Court in the case of Roy V.D. vs. State of Kerala, 2001 AIR(SC) 137 , which according to him squarely applies both on facts and law. He also relied on few other judgments, such as Jitendra vs. State of Madhya Pradesh, 2004 10 SCC 562 Union of India vs. Shah Alam, 2010 AIR(SC) 1785 ; C. Ali vs. State of Kerala, 2014 AIR(SC) 1384 Sri Tripathi, the learned A.G.A, strongly opposed the submission and contended that the case of Roy V.D. is no longer a good law in view of Constitution Bench Judgements in the case of State of Punjab vs. Baldev Singh, 1999 AIR(SC) 2378 ; Karnail Singh vs. State of Haryana, 2009 8 SCC 539 and Vijaysinh Chandubha Jadeja vs. State of Gujarat, 2011 1 SCC 609 .;