Decided on July 25,1996

In Re: Dipak Jain Appellant
STATE Respondents


- (1.)The Petitioner Dipak Jain has filed this -petition under Sec. 439 Code of Criminal Procedure, 1973 praying for bail. The matter has already been heard on July 26, 1996.
(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 June 26, 1996 under Sec. 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 June 26, 1996 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 First Information Report of Chanchal P.S. Case No. 46 of 1996 dated June 26, 1996 that O.C., Chanchal P.S. got an information on that date at about 12.05 hour in the term that Swapan Mondal and Akhtar Sk., two smugglers dealing in brown sugar were arriving at Chanchal bus stand by private car No. W.N.L. 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. 1203 dated June 26, 1996 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. W.N.L. 3359 coming to Chanchal bus stand from Malda side. No sooner had that private Car stopped 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 Swapan Mondal and Akhtar SK. were giving delivery of two polythene packets containing brown sugar to Abdus Samad and the Petitioner, Dipak Jain. On seeing police, the accused, Swapan Mondal and Abdus Samad tried to conceal those 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 persons 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.
(3.)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 Sec. 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 K.L. Sukhya v/s. Shuy Karmakar : A.I.R. 1979 S.C. 711 and Mahindra Khamka v/s. State of Punjab : A.I.R. 1995 S.C. 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 Sec. 50 of the Act is unlawful and that the person accused of possession of the contraband is entitled to be discharged or acquired as the case may be. The learned advocate, Mr. Saha, for the State cites and relies on the ruling State of Himachal Pradesh v/s. Sri Priths Chand : A.I.R. 1996 S.C. 977.

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