STATE OF GUJARAT Vs. PRATAPSINH MADHAVSINH PADHIYAR

JUDGEMENT

(1.) * * * *

(2.) The learned Judge has granted bail, placing reliance on two judgments, one of Balbir Singh (1994(3) SCC 299) and another of Hathi @ Mangalsinh (1993(2) GLR 1743). So far as Sec. 50 of the N.D.P.S. Act is concerned, it is attracted, when a person accused of offences punishable under N.D.P.S. is required to be searched and not his premises. Therefore, much time was spent by the learned Counsel in arguing his case on the ground of non-compliance of Sec. 50 despite this Court telling him that this Court is in agreement with his argument, which is based on the judgment in Balbir Singh (supra), that non-compliance of Secs.41, 42 and 50 vitiates the trial. The question is whether non-compliance of any of these provisions can be inferred from the First Information Report only ? In the First Information Report, compliance of Sec. 41, Sec. 42 or Sec. 50 is not required to be stated. What is required to be stated in the First Information Report is the facts constituting offence as required under Sec. 154 of the Code. Sub-section (1) of Sec. 154 reads as under :-

(3.) Section 42(2) of N.D.P.S. Act provides that any information received of an offence under the N.D.P.S. Act is required to be taken down in writing and is also required to be sent forthwith to the superior official. The facts showing compliance of Sec. 42(2) of N.D.P.S. Act are not required to be stated in the First Information Report. It is a matter of evidence and Investigation Officer (I.O.) who is normally examined as a last witness may prove that the information in writing is taken down and sent to his superior official and how sent. For the search after sunset and before sunrise, whether I.O. was required to assign the reasons and whether reasons are assigned or not, and if not why, can be explained by him. Thus, compliance or not of Secs. 41, 42 and 50 of the N.D.P.S. Act cannot be taken into consideration simply from silence of compliance in F.I.R. and at the stage of consideration of bail application. Therefore, finding of the learned Judge that all mandatory provisions of Secs. 41, 42 and 50 of the Act are not complied with on the basis of First Information Report is erroneous and not warranted by any provision of law. The conclusion arrived at by the learned Judge is not only erroneous, but is contrary to the provisions of Sec. 37 of the N.D.P.S. Act. If the learned Judge has proceeded on the basis of a wrong assumption of law and facts and has arrived at a particular conclusion, which he would not have otherwise come, that conclusion is required to be set aside and corrected by this Court. In this view of the fact, there is no difficulty to set aside the order to this extent.