- (1.) G. B. Singh, J. These three connected bail applications shall be disposed of by this order.
(2.) THE prosecution case is that on 3-6-1986, at about 5. 00 a. m. a truck No. P. A. T 1587 was found coming from the side of Barabanki on Faizabad - Lucknow Road. Inspector Habibur Rahman and some other personnel in order to check the truck tried to stop it enar Badshah Nagar Colony at Toll Tax Barrier. THEy gave signal to the rruck to stop but it sped away and was chased and stopped at Nishatganj, crossing near Hanuman Mandir, Lucknow. On that truck Teer Singh, Amrik Singh, Palvinder Singh and Ranjit Singh were fonud sitting. On search being taken 24 packets containing 110. 700 kilograms of opiums were recovered from an inbuilt chamber in a partition wall of the truck. A recovery memo was prepared and on the basis of that recovery these four persons are being prosecuted for an offence punishable under Section 8 (c) read with Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985. THEir applications for bail were rejected by the Magistrate as well as the Sessions Judge. THEy have, therefore, moved application for bail before this Court, Teer Singh and Amrik Singh have filed joint applications for bail (Criminal Misc. Case Nos. 2085 (B) of 1986) and Ranjit Singh and Palvinder Singh filed two separate applications (Criminal Misc. Case Nos, 2663 (B) of 1986 and 3664 (B) of 1986) respectively. Section 8 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) prohibits possession, transport etc. of any narcotic drug or psychotropic substances. According to Section 2 (xiv) which contains definition of narcotic drug it includes opium. Section 18 of the Act provides punishment for possession, transport etc. of opium. According to this section whoever in contravention of any provision of this Act possesses, transport etc. opium is punishable with a rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and is also liable to fine not to be less than one lakh rupees but may extend to two lakhs rupees. Thus, the case against the applications is that they were in possession and transporting opium in contravention of Section 8 (c) of the Act and are, thus liable to punishment under Section 18 of the Act. It was argued by the learned Counsel for the applicants that the applicants were merely passengers in the truck and they were not in possession or transporting the recovered opium. According to them one Sohan Singh was the driver of the truck and when the truck was stopped, he ran away leaving behind the applicants passengers in the truck Learned Counsel for the State, on the other hand, argued that Palvinder Singh applicant was in driver's seat and Ranjit Singh was the second driver of the truck. He further argued that Teer Singh was the cleaner of the truck and Amrik Singh is a close associate of the three other applicants and all of them were in possession of and transporting the opium in question. In support of this argument learned Counsel for the State referred to an inventory Annexure No. 2 annexed to Criminal Misc. Case No. 2085 (B) of 1986 in which it is mentioned that driving licences of Palvinder Singh and Ranjit Singh applicants were found in the truck from which the opium was said to be recovered. There is no suggession on behalf of the applicants, as to who was the cleaner of that truck. Apart from this the statements of these applicants recorded soon after the recovery of the opium were produced on behalf of the State and thay go to show that Palvinder Singh and Ranjit Singh were drivers and Teer Singh was cleaner of that truck. They further go to show that Amrik Singh was their close associate and the opium recovered was loaded in his knowledge and all of them were conscious of the fact that the opium is being transported by that truck. These statements belie the case that the applicants were passengers in the truck. The truck is generally used for carrying goods and not for carrying passengers. It was argued by the learned Counsel for the applicant; that the statements are not admissible in evidence. Learned Counsel for the State opposite-party, on the other hand, relied upon three cases to show that they are admissible in evidence. On of them is Badakujoti Sawant v. State of Mysore, AIR 1966 SC 3. 746. It was a case under Central Excise Salt Act, 1944. It was held in this case that though Section 21 (2) of the Act confers on the Central Excise Officer the same power as an officer- incharge of a police station when investigating a cognizable case but while recording statement would not be hit by Section 25 of the Evidence Act and would be admissible in evidence. The other two cases are Ramesh Chandra Mehta v. State of West Bengal, 1970 Cri LJ 863 (SC) and Illias v. Collector of Customs, Madras. 1970 Cri LJ 998 (SC ). One of them in a case under Sea Customs Act of 1878 and the other is under the Customs Act, 1962. Th: Sea Customs Act of 1878 was replaced by the Customs Act of 1962. It was held in these cases that the Customs Officer is not a Police Officer within the meaning of Section 25 of the Evidence Act and the statement made before him by a person who is arrested or against whom an enquiry is made are not covered by Section 25 of the Evidence Act. It was also held in 1970 Criminal Law Journal 863 that a person accused of any offence and as such the statement made by him before the Customs Officer is not statement by a person accused of an offence. The provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 aie similar to those of the aforesaid Act. It may be added that in Mahesh v. Union of India, Habeas Corpus Writ Petition No. 2963 of 1986 decided on 6-5-1986 (DB) (LB) reported in 1986 EFR 513 (All) (LB), which was a case under Narcotics Department investigating the case under the Act is not a Police Officer. It is, therefore, difficult to disca-d the statements of the applicants referred by the learned Counsel for the State opposite-party for the purposes of these applications for bail, it may also be added that Sections 35 and 54 of the Act raises certain adverse presumption against the accused persons. According to Section 35 of the Act if for an offence under this Act a culpable mental state of the Accused is required, the Court shall presume the existence of such mental state. This culpable mental state includes inten tion, motive, knowledge, etc. Section 54 of the Act further indicates that it is for the accused to account for satisfactorily the possession of the recovered narcotic goods. In view of all this it can be safely said that on facts the applicants have not been able to make out a prima facie case for bail.
(3.) IT was also argued by the learned Counsel for the applicants that the applicants were arrested and search and recovery were made by unauthorised officers and as such the custody became illegal. IT is difficult to accept this argument in view of the material placed specifically for the purposes of the bail. Section 41 empowers an officer of gazetted rank of Narcotics Depart ment to authorities any officer subordinate to him to arrest a person or search a building, conveyance etc. whether by day or by night if he has reason to believe, from personal knowledge or information given and taken in writing that any person has committed an offence punishable under the Act. The notification issued under this section empowers the officer of and above the rank of Superintendent in the Department of Narcotics etc. to authorise an officer for the aforesaid purposes within the area of their respective jurisdiction. In the present case learned Counsel for the State produced a copy of infor mation report which shows that the Deputy Narcotics Commissioner Uttar Pradesh received information for the offence and it was recorded in writing. Inspector Habibur Rahman has filed counter-affidavit to the effect that he was authorised for the aforesaid search and arrest. The recovery memo also as to the effect that he organised the search and recovery. The requisite authority for arrest and search was prima fade there. Section 42 of the Act further lays down that the power of search, seizure and arrest can be exercised without warrant or authorisation by such officer who is empowered in this behalf by a Notification. There is a Notification dated November 14, 1985 of the Central Government showing that officers of and above the rank of Sub-Inspector in the Department of Narcotics have been vested with the powers of search, seizure and arrest without warrant. Inspector Habibur Rahman who is, undoubtedly of Narcotics Department had, therefore, power of search, seizure and arrest in the present case. Section 43 of the Act further authorises the officers of the Departments mentioned in Section 42 of the Act to seize any narcotic drug in any public place and detain and search any pe sons whom he has reason to believe to have committed aa offence punishable under the Act if such a pr. rson has any narcotic drug in his possession in such a place. The Public Place, includes any place intended for use by or accessible to the public place. Thus, it is difficult to say at this stage that the search, recovery and arrest was made by an unauthorised officer. It was also argued by the learned Counsel for the applicants that the grounds were not supplied to the applicants at the time of the alleged recovery and Article 22 of the Constitution of India was, therefore, violated and the custody of the applicants thus became illegal. I do not agree with this submission also. The recovery memo shows that it contained all the necessary facts There is an endorsement at the foot of the recovery memo that it was read over to the applicants and they put their signatures at the foot of it. It is also menti ined in tiie memo that a copy of this was given to such accused. The applicants did not dispute their signatures of this memo. It has been held in Vimal Kishore Mehrotra v. Stale of U. P. , AIR 1956 All 56 that for purposes of clause (1) of Article 22 it is not necessary for the authorities to furnish full details of the offence. The information should, however, be sufficient to enable the arrested person to understand why he has been arrested. In the present case all the necessary facts were mentioned in the recovery memo and they were sufficient to enable the applicants to under stand why they had been arrested. The grounds of arrest were, therefore, communicated to the applicants and their custody cannot be said to be illegal on this ground.;