RAJUWA Vs. STATE OF U P

JUDGEMENT

(1.) J. S. Mathur, J. In these two bail applications in cases under the Nar cotic Drugs and Psychotropic Substances Act, 1985 (herein after referred to as N. D. P. S. Act) similar questions of fact and law arise and as, such they are being disposed of by this common order.

(2.) IN Crl. Misc. Case No. 14475 of 1991 (Crime No. 249 of 1991 under Section 20-B of the Narcotic Drugs and Psychotropic Substances Act, P. S. Baberu, District-Banda) applicant Sewaram was arrested on 26-8- 1991 for the alleged offence under Section 20 (b) of the N. D. P. S. Act for allegedly being in posession of one Kilogram Ganja and two and a half Tolas Opium for the pur poses of selling. It is alleged that, while on patrol duty, Sub-INspector Harish Chandra Tripathi, S. O. got the information from an informer that the applicant was selling Ganja and Opium in front of the Government Opium Shop. The S. O. , accompanied with the public witnesses Ram Chandra Gupta and Shiv Mangal Chaubey, searched the applicant and found the aforesaid Ganja and Opium from a plastic bag, as also some money in another bag. This was sealed at the spot and recovery memo was prepared. A copy of the memo was given to the applicant but allegedly he tore it of.

(3.) THE learned counsel for the applicants, Sri Rathore, has canvassed the same grounds before this Court as were canvassed before the- learned Sessions Judge. He has submitted that provisions of Sections 42 and 50 of N. D. P. S Act are mandatory and violations thereof must be presumed to have caused prejudice to the applicants. It is urged that the information received by S. I. H. C. Tripathi was not reduded in writing as is required under Section 42, N. D P. S. Act, nor the applicants were given any opportunity of getting themselves searched before a gazetted officer or a Magistrate as is provided under Section 50 of N. D. P. S. Act. It is submitted by him that the learned Sessions Judge should have considered these pleas on merit and consideration thereof could not have been postoponed until the trial. It. is also contended by the learned counsel that, if these two provisions are interpreted to mean that these mandatory requirements could be circumvented by the police officers or the other authorities that would be violation of the mandate under Article 21 of the Constitution.