M LOGANATHAN Vs. ASSISTANT DIRECTOR

JUDGEMENT

(1.) Petitioner Loganathan and Shiva Narayanan, who have been arrayed as A 3 and A 2 respectively along with 11 others, charged with offences punishable under Section 8 (c) read with 21,23,25 and 27 A of the Narcotic Drugs and Psychotropic Substances Act, herein after referred to as the NDPS Act in C.C. No. 24 ot 1994 on the file of the Special Judge for E.C. Act cases, Salem, who were arrested and lodged to judicial custody, have come forward with these applications for bail under section 439 of the Code of Criminal Procedure. Since the occurrence involved in the whole case relating to both the petitioners along with others is one and the same and the points taken are common, with the consent of the Bar, I am disposing both these petitions, by passing this common order.

(2.) The conspectus of the facts is that at or about 11.45 A.M. on 15.5.1993 while the respondent was having a surveilance for the persons accused of the offences under the N.D.P.S. Act on intelligence spotted a light blue colour Ambassador car bearing the registration mark TNB 9346 parked near National Hotel at Salem, and in which, two persons were found getting into the same from the Hotel and that the said car proceeded towards Omalur Road; being followed by the responqentand that on covering a certain distance, at a place where a loaded public transport lorry was parked in the opposite direction in the same road, the car was stated to have stopped and one person from the car alighted and got into the lorry and qo piloting by the said car, the lorry with the load of consignment followed, which was followed by the respondentTs officials. At a place called Thallapallam on the same highway, both the lorry and the canyere stopped and intercepted and on questioning, the respondent caine to know that contraband under the N.D.P.S. Act were concealed user the consignment of the lorry and that the inmate of the lorry as well asthe carwere responsible for the same and on finding trye said place, being in a highway, inconvenient, for further follow up action, took the two vehicles along with responsible persons, including the petitioners herein to their office at Salem, where at about 9 P.M.on that day, the said lorry was searched and duting the said sojourn , a huge quantity of heroin worth Rs. 1,32,20,000/- weighing 66,100 kgs. kept concealed under 1,750 card board boxes containing slate pencils, which contraband was seized under the cover of mahazar at about 9 P.M. on the sami-day, attested by the witnesses. All the persons involved in the crime were arrested, investigation followed and several other accused were also secured. The contraoands were sent to the Court according to the respondent in accordance with the procedure laid down in this regard. Consequently, complaint was also lodged before the courtat Salem and the trial of the case is yet to commence. It is thus seen that from 15.5.1993 onwards, the petitioners alongwith the other accused are in judicial custody for the offences aforementioned.

(3.) For and on behalf of the petitioners it is stated that proviously bail applications were filed but however the same were dismissed as withdrawn. Now, an attempt is being made on their behalf seeking the bail under Section 439 of the Code of Criminal Procedure on the following grounds. (1) Mr. B. Kumar, learned counsel appearing on behalf of both the petitioners dwells his first attack by drawing my attention to the fact that an inherent improbability lies in the case of the respondent against the petitioners as seen from the first detention mahazar, prepared at about 11.45 A.M. at Thallapallam by the respondent and the statement recorded from both the petitioners. There is inconsistency between the two, according to the learned counsel for the petitioners. In the first detention mahazar, the respondent has stated that on spotting a light blue colour Ambassador Car parked near the National Hotel at Salem, they found two persons coming from the hoteland they alighted the car and then proceeded to the Omalur Road, being followed by the respondent and other staff and that on reaching the place where the loaded lorry was found parked in the opposite direction, one person got down from the car and got into tile lorry. This would mean that only two persons took the Ambassador Car, out of whom, one got down and alighted the lorry. If that was so, while intercepting the said car by the respondent by closely following at about 11.40 p.m. at Thallapallam only one person could have been found in thecai but three were found as alleged by the voluntary statements recorded from the petitioners these two versions, according to the learned counsel poses a gra.ve and serious doubt in the genuineness of the statements and mahazar prepared by the respondent; (2) Basing reliance upon the language and phraseology adopted in the detention mahazar prepared at about 11.45 P.M. on 15.5.1993, learned counsel contends that the respondent Officials had a definite information about the trafficking and transport of the narcotic drugs, namely, the heroin and that therefore, they ought to have recorded the same in writing as provided under Section 42 of the N.D.P.S. Act and sent a copy of the special report to the immediate superior officer and which they had not done, clearly amounts to the non-compliance of the mandatory directions of the said sections of law; (3) Thirdly that after taking the car and the lorry in question to the office of the respondent at about 9 P.M. on the day of occurrence, that is after sun set the search made is also totally against the mandate in built in the above section of law:which vitiates the case of the prosecution; (4) Fourthly, the learned counsel would contend that Section 50 of the N.D.P.S. Act, namely, the requirement to inform the accused that their person would be searched in the presence of a Gazetted Officer or the nearest Magistrate has not, been complied with; (5) The failure to file any petition before the appropriate court or learned Magistrate to take photographs and to follow necessary procedures as provided under Section 52-A of the N.D.P.S. Act amounts to the clear violation of the Act itself. For the aforesaid reasons, bail was sought for both the petitioners.