DIPAK JAIN Vs. STATE
LAWS(CAL)-1996-7-38
HIGH COURT OF CALCUTTA
Decided on July 05,1996

Dipak Jain Appellant
VERSUS
STATE Respondents

JUDGEMENT

NURE ALAM CHOWDHURY,J. - (1.)THE petitioner Dipak Jain has filed this petition under Section 439, Cr.P.C. 1973 praying for bail. The matter has already been heard on 26.7.96.
(2.)THE petitioner's case is that he has been taken to custody in connection with Chanchal P.S. case No. 46 of 1996 dated 26.6.96 under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as N.D.P.S. Act, along with five others, on the allegation that on 26.6.96 the petitioner was caught red handed while he was taking delivery of brown sugar from the other two persons taken to custody in connection with that case, and that, two packets of brown sugar each weighing 500 gms were recovered from them at that time. It has been alleged in the FIR of Chanchal P.S. Case No. 46 of 1996 dated 26.6.96 that O.C., Chanchal P.S. got an information on that date at about 12.05 hour in the terms that Swapan Mondal and Akhtar Sk., two smugglers dealing in brown sugar were arriving at Chanchal but stand by private car No. WNL 3359 and that they would give delivery of huge quantity of brown sugar to Abdus Samad and the petitioner, Dipak Jain. The information was recorded in the G.D. of P.S. under G.D. Entry No. 1303 dated 26.6.96 and some S.I. of Police accompanied the O.C. (Anil Kumar Roy) de facto complainant, and went to Chanchal bus stand under supervision of Circle Inspector Sri P.C. Das. They took with them two private persons to bear witness of expected recovery of brown sugar from the persons named by the source of information. At about 15.10 hour they saw the private Car No. WNL 3359 coming to Chanchal bus stand from Malda side. No sooner had that private car stooped at Chanchal bus stand, two persons hurriedly entered into the private car and the petitioner was one of those latter two persons. The police party under the direct supervision of Circle Inspector, Chanchal, Sri P.C. Das, intercepted the private car and found that the Swapan Mondal and Akhtar Sk. were giving delivery of two polythene packets containing brown sugar to Abdus Samad and the petitioner, Dipak Jain. On seeking police, the accused, Swapan Mondal and Abdus Samad tried to conceal these packets under their garments, but on challenge by police they produced those two packets to the de facto complainant in presence of other members of police party and the private persons who accompanied the police party to bear witness. Those person could not produce any valid paper or cash memo for possessing or carrying brown sugar. The de facto complainant got weighed the brown sugar recovered from the possession of Swapan and Akhtar, seized the same, maintaining required formalities in that respect and also arrested the persons from whom the packets were recovered as well as the persons to whom they were about to deliver the contraband and started this case against all those persons including the petitioner.
The learned advocate for the petitioner submits that the contraband was recovered, not from possession of the petitioner but from possession of other persons, that is those who came by the car and as such the petitioner is being prosecuted illegally. The main spearhead of his argument is that the search and seizure was done in desperate violation of Section 50 of the N.D.P.S. Act and as such the petitioner is entitled to be discharged. In support of his contention as above the learned advocate relied on the rulings reported in AIR 1979 SC 711, AIR 1994 SCW 1802 : 1994 C Cr LR (SC) 121, AIR 1994 SCW 4393 and AIR 1995 SC 1157. He submits that in all those rulings, the Hon'ble Supreme Court has been pleased to hold in exclusive terms that search and seizure in violation of Section 50, of the Act is unlawful and that the person accused of possession of the contraband is entitled to be discharged or acquitted as the case may be. The learned advocate, Mr. Saha, for the State cites and relies on the ruling reported in AIR 1996 SC 977.

(3.)WE have considered arguments of the learned advocate of both the parties carefully. In Section 50 of the Act it has been provided that :-
"Section 50. Conditions under which search of the 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 43, he shall, if such person no requires, take such person without unnecessary delay to the nearest Gazetted Officer of any department mentioned in section 42 or to the nearest Magistrate."

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