GOVIND RAMJILAL AGRAWAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE applicants are facing trial under Section 20 (b) punishable under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 for possession of Ganja, 350 gms. of Ganja was found from the room occupied by the applicants who are husband and wife and 700 gms. of Ganja was recovered from the bucket which applicant No. 2 was carrying when the police came. In this bucket, on the top, there were wet clothes and below the wet clothes, there was 700 gms. of Ganja. THE bail application filed by the applicants for release on bail was rejected by the learned Additional Sessions Judge, Gondia Vide order dated 01. 06. 2001. This is how the applicants have moved the application for bail before this Court.

(2.) LEARNED Advocate for the applicants urged before me that in so far as the applicant No. 2 is concerned, the mandatory provisions of section 50 have not been complied with since the applicant No. 2 before search was not informed by the police of her right to be searched before the Gazetted Officer or Magistrate. According to the learned Advocate for the applicants, the raid was conducted on prior information and it is not a case of chance recovery as a result of which the mandatory provisions of Section 50 were required to be followed. He has placed reliance on State of Punjab v. Balbir Singh (reported in AIR 1994 SC 1872); Ebanezer Adebaya @ Monday Obtor v. B. S. Rawat, Collector of Customs, R & I, New Delhi and another (reported in 1996 (2) Mh. L. J. 280 : 1996 (2) ALL MR 402); Namdi Francis Nwazor v. Union of India and another (reported in 1998 (8) SCC 534); Mohinder Kumar v. State, Panaji, Goa (reported in 1998 (8) SCC 655); Sajan Abraham v. State of Kerala (reported in 2001 AIR SCW 2970 ).

(3.) IN State of Punjab v. Balbir Singh (supra), it has been held that the provisions of Sections 41 (1), 41 (2), 42 (1) and Section 50 of the N. D. P. S. Act are mandatory. IN para 26, the conclusions have been recorded and for our purpose the conclusion in sub paragraphs (1) and (5) of paragraph 26 are relevant which read as under : - (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr. P. C. and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance (of) recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act. (5) On prior information, the empowered officer or authorised officer while acting under Sections 41 (2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.