Crl.Misc.No.M-23306 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Misc.No.M-23306 of 2009 Date of decision: 28.10.2009 Saraj Singh ... Petitioner versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.D.S.Pheruman, Advocate, for the petitioner. Mr.P.S.Sidhu, Addl.AG, Punjab. ... JORA SINGH, J. Saraj Singh filed this petition under Section 439 Cr.P.C. for grant of regular bail in case FIR No.75 dated 30.9.2008 under Sections 21/29/61/85 of the NDPS Act (for short `the Act’), registered at Police Station Khalra, District Tarn Taran. As per prosecution story, in view of secret information, police party was holding a naka near the bridge at Mari Megha. Secret information was by name against Saraj Singh son of Gurbax Singh, resident of Village Wan Tara Singh, and Kabal Singh son of Santa Singh, resident of Village Jasuwal. When the police party was holding nakabandi, then a person was sighted while coming from Village Dall and on seeing the police party, he tried to turn back. Saraj Singh was apprehended by the police party. After compliance of the provisions of Section 50 of the Act, one kg. Of heroin was recovered from the possession of the petitioner. Crl.Misc.No.M-23306 of 2009 2 Learned counsel for the petitioner argued that Sections 42 and 50 of the Act are mandatory, but provisions of Section 50 of the Act have not been complied with. When there is non-compliance of mandatory provisions of the Act, then subsequent proceedings are vitiated. Co-accused Kabal Singh is on bail vide order dated 2.7.2009. Petitioner is in custody w.e.f. 30.9.2008. No question to interfere with the appearance of the witnesses, if released on bail, because c-accused is already on bail. Learned counsel for the petitioner placed reliance on (i ) 1999(3) RCR (Crl.) 533, Sate of Punjab vs. Baldev Singh, ( ii ) 2006(2) RCR (Crl.) 167, Karam Chand vs. State and (iii) 2008(1) RCR (Crl.) 137, Tulsi Ram vs. State of H.P. Learned State counsel argued that as per secret information, intimation was given to the concerned police station. Recovery is not from the person of the petitioner. Recovery is from the parna tied around the waist of the petitioner. Challan has been presented in the Court. Evidence is being recorded. If the Court, while disposing of the bail application, opines that there is non-compliance of mandatory provisions of the Act, then the order is to influence the Presiding Officer. Co-accused was released on bail because he was not apprehended at the spot, whereas the present petitioner was apprehended at the spot and is in custody. The petitioner is to interfere with the appearance of the witnesses, if released on bail. Instead of releasing the petitioner on bail, a direction may be given to the trial Court to expedite the trial and conclude the evidence within a year. Undisputedly, co-accused, namely, Kabal Singh is on bail vide order dated 2.7.2009 in Crl.Misc. No.M-2055 of 2009, but case of the present petitioner is not akin to the case of Kabal Singh. Kabal Singh was Crl.Misc.No.M-23306 of 2009 3 not apprehended on the spot. Kabal Singh was in custody w.e.f. 1.10.2008 when ordered to be released on bail vide order dated 2.7.2009. Present petitioner was apprehended on the spot. No dispute about the law cited by learned counsel for the petitioner, but while disposing of the bail application, it is not proper to opine that Section 50 of the Act or Section 42 of the Act is applicable. Non-compliance of these Sections is fatal. File shows that there was secret information to the effect that Saraj Singh and Kabal Singh are doing the illegal business of heroin and opium. As per secret information, police party was holding nakabandi near the bridge of drain of Mari Megha. DSP was with the police party while holding nakabandi. Present petitioner was sighted while coming on foot from the side of Village Dall and was signalled to stop. After complying the relevant provisions of the Act, recovery of one kg of heroin was effected from the petitioner. In State of Punjab vs. Baldev Singh's case (supra), Hon'ble Supreme Court held that search and seizure on receipt of prior information- It is imperative on the officer to inform the accused that he has a right of search before Magistrate or Gazetted Officer- Information may not necessarily be in writing- Prosecution has to establish the fact that offer was made. Illicit article recovered without following provisions of Section 50 cannot be used as evidence of unlawful possession of illicit article on the person from whom that contraband has been seized. But in the present case, Gazetted Officer was of the police department. He has disclosed his identity to the petitioner when apprehended. Offer was given to the petitioner as to whether he wanted to be searched before him or any other Magistrate. Petitioner had reposed faith Crl.Misc.No.M-23306 of 2009 4 in the Gazetted Officer, i.e., DSP, to be searched in his presence. In the presence of Gazetted Officer, one kg of heroin was recovered. In Karam Chand's case (supra), accused was informed that he had a right to be searched before Police Gazetted Officer instead of Gazetted Officer- Provisions of Section 50 not complied with- Search illegal. As per above cited authority, police party received secret information to the effect that 4 persons carrying charas are to arrive in a Gypsy to supply the same in front of Oasis Hotel in Pitam Pura, Delhi. DDR was recorded. Intimation was given to ACP (Headquarters) and CP Cell of the same. Raiding party was constituted as per direction of ACP B.C.Kalra. Informer was also with the raiding party. An effort was made to join independent witnesses, but nobody came forward. After some time, accused came while carrying bags. After apprehending the accused, notice under Section 50 of the Act was issued, but no one exercised his right of being searched before a Gazetted Police Officer or a Magistrate. 12 kgs. of charas was recovered. In para No.10 of the judgment, Hon'ble Supreme Court held that recovery of contraband from the blanket, which was lying over the thighs of the accused while sitting in the vehicle. Recovery is not from the person of the accused. Section 50 of the Act is not applicable. In the present case, when police party suspected that the petitioner was carrying contraband, then offer was given. As per reply by the petitioner, recovery was effected. In Tulsi Ram's case (supra), recovery of charas, which was concealed by the accused around his waist. Held that it is body search- Section 50 is applicable. Crl.Misc.No.M-23306 of 2009 5 In the present case, recovery of heroin was from the piece of cloth, which was tied from the waist. Dispute is whether Section 50 of the Act is applicable or not. While disposing of bail application, if the Court opines that Section 50 of the Act is applicable, then bail order is ultimately to effect the merits of the case. If the Court opines that Section 50 of the Act is not applicable and the recovery is from the parna tied around the waist, then ultimately while disposing of the case on merit, there is a possibility of opinion by the Court that Section 50 of the Act is applicable. While disposing of the bail application, the Court is to see whether petitioner has not committed any offence punishable under the Act. Secondly, the petitioner is not to commit an offence punishable under the Act, if released on bail. Keeping in view the facts of the case, at this stage, very difficult to opine that the petitioner has not committed any offence punishable under the Act. Secondly, the petitioner is not to commit an offence punishable under the Act, if released on bail. Co-accused was released on bail because he was not apprehended from the spot. No recovery was effected from the co-accused. So, case of the present petitioner is not akin to the case of co-accused, ordered to be released on bail. Keeping in view the recovery of heroin, at this stage, petition under Section 439 Cr.P.C. being without merit is dismissed. However, since the petitioner is in custody w.e.f. 30.9.2008, so keeping in view long custody of the petitioner, trial Court is directed to conclude the prosecution evidence within six months after receipt of this order. In case prosecution failed to conclude the evidence within six Crl.Misc.No.M-23306 of 2009 6 months, then the petitioner would be at liberty to move an application for bail. 28.10.2009 ( JORA SINGH ) pk JUDGE