Aniruddha Bose,J. - (1.) The petitioners in all these cases have been primarily accused of offence of being in possession of contraband articles under the provisions of The Narcotic Drugs and Psychotropic Substances Act, 1985 (the 1985 Act) beyond commercial quantity and are seeking bail pending their trial. In their petitions for bail, the petitioners question the legality of the process of search and seizure through which the contraband articles are alleged to have been recovered from them, and they seek bail mainly on the ground that such search and seizure process are flawed. There is special provision restricting grant of bail to persons accused of offences under the 1985 Act. Such restrictions have been specified in Section 37 of the Act:- "37. Offences to be cognisable and non bailable. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) - (a) Every offence punishable under this Act shall he cognisable; (b) No person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless- (i) The Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) Where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail."
(2.) The manner in which search is to be conducted under the said Act has been stipulated in Sections 41, 42, 43 and 50 thereof and these provisions specify:- "41. Power to issue warrant and authorisation.-(1) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed. (2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the paramilitary forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place. (3) The officer to whom a warrant under subsection (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under section 42. 42. Power of entry, search, seizure and arrest without warrant or authorisation.-(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset, (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. Provided that in res pect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector: Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. 43. Power of seizure and arrest in public place.-Any officer of any of the departments mentioned in section 42 may- (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.-For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. 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 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 to 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. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974) (6) After a search is conducted under sub-section(5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."
(3.) Thrust of submissions of Mr. Kabir, learned counsel appearing for the petitioners is that in the event there is flaw in the search and seizure process and non-compliance of any of the statutory safeguards, that would ultimately lead to acquittal in the trial. On this premise, he wants us to come to satisfaction that there are reasonable grounds for believing that the petitioner in each case is not likely to be convicted, which is necessary for grant of bail having regard to the provisions of Section 37 of the 1985 Act. He has referred to a large body of authorities in support of his arguments that on that point. The judgments on which Mr. Kabir has relied upon in detail are:- (i) State of Punjab v. Baldev Singh (1999(3) R.C.R.(Criminal) 533 : AIR 1999 SC 2378) , (ii) State of Himachal Pradesh v. Pawan Kumar (2005(2) R.C.R.(Criminal) 622 : AIR 2005 SC 2265), (iii) State of Rajasthan v. Parmanad (2014(2) R.C.R.(Criminal) 40 : 2014(2) Recent Apex Judgments (R.A.J.) 245 : AIR 2014 SC 1384) , (iv) Tofan Singh v. State of Tamil Nadu [2013(4) R.C.R.(Criminal) 631 : 2013(5) Recent Apex Judgments (R.A.J.) 520 : (2014)6 SCC (Cri) 196] , (v) Dilip v. State of Madhya Pradesh [2007(1) R.C.R.(Criminal) 586 : 2007(1) Recent Apex Judgments (R.A.J.) 235 : (2007)1 SCC 450] , (vi) Union of India v. Shah Alam [2009(3) R.C.R.(Criminal) 158 : 2009(3) Recent Apex Judgments (R.A.J.) 695 : (2009)16 SCC 644] (vii) Sarija Banu v. State [(2004)12 SCC 266] (viii) Thana Singh v. Central Bureau of Narcotics [2013(3) R.C.R.(Criminal) 931 : 2013(2) Recent Apex Judgments (R.A.J.) 378 : (2013)2 SCC 590] , (ix) Ritesh Chakravarti v. State of Madhya Pradesh [2006(4) R.C.R.(Criminal) 480 : (2006)12 SCC 321] , (x) Gurjant Singh @ Janta v. State of Punjab [2013(4) R.C.R.(Criminal) 874 : 2013(6) Recent Apex Judgments (R.A.J.) 153 : (2013)13 SCALE 295] (xi) State of Uttaranchal v. Rajesh Kumar Gupta [2006(4) R.C.R.(Criminal) 974 : (2007)1 SCC 355] (xii) Mohd. Ramzan v. State (NCT of Delhi) [(2005) ILR 1 Delhi 859] (xiii) Jadunandan Roy v. State of West Bengal [(1999)2 CWN 759] (xiv) Harun Rashid v. State of West Bengal [(2005)1 CHN 517], (xv) A judgment of a Coordinate Bench delivered on 7th November 2014 in the case of Mainul Haque v. The Union of India in C.R.A 601 of 2011. ;