YOGESH KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) R. R. K. Trivedi, J. By this petition, petitioner Yogesh Kumar alias Tillu has challenged the legality of First Information Report dated 12th September, 1992 which has been registered as Crimes No. 416 to 420 of 1992 under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No. 61 of 1985), hereinafter referred to as 'act', and has prayed that the aforesaid First Information Report be quashed and the respondents be restrained from proceeding with the investigation and arrest of the petitioner on the basis of the same. In alternative, it has also been prayed that in case this Court comes to the conclusion that the interference with the aforesaid First Information Report is not possible then the bail application of the peti tioner may be directed to be considered same day by the competent court in the event of petitioner's surrendering before the competent court for the offences disclosed in the First Information Report. The legality of the First Information Report has been questioned mainly for non- observance of certain conditions required before making search and seizure of the goods possession of which constitutes offence under the Act and the consequent arrest under Sections 42 and 50 of the Act.

(2.) THE facts giving rise to this petition are that on 11-9-92 Station House Officer, G. P. Yadav while he was on duty with other police officials at Bus Station of town Sumerpur, district Hamirpur, received information that the petitioner along with other persons is inside his residential house and is possessed of large quantity of Ganja, Opium, Charas and Bhange and is negotiating to sell the same. He also received information that in case swift, prompt and immediate action is not taken the aforesaid articles shall be transferred and removed to other place. THE aforesaid Police Officer placing reliance on the aforesaid information proceeded to the site and conducted the raid at about 10. 00 p. m. in the night and recovered therefrom large quantity of Narcotic substances. It is further disclosed from the First Information Report that on seeing the police, petitioner ran away with the bag in his hand. He was chased by the police. However petitioner made his escape good after throwing the bag in his hand from which 7 kgs. of Opium was recovered. Four persons who were sitting inside the same, namely, Sukkhu, Ram Singh, Lallu and Surendra Kumar were arrested with the large quantities of narcotic goods mentioned against them, which are as under : I, Sukkha son of Dulla. . . Two bags of Bhang weighing about 80 kgs. 2. Ram Singh son of Behari Yadav. . . Four bags of Ganja weighing about 1 qts.

(3.) WE have heard learned counsel for the petitioner and learned Stand ing Counsel and given our serious considerations to the rival contentions. The important question involved in the present writ petition is as to whether for the alleged breach of Sections 42 and 50 of the Act, which fall under Chapter V dealing with the procedure regarding entry, search seizure and arrest by various authorities of the suspected offenders will render search and recovery of the contraband goods illegal and the investigation consequent thereof and all follow up actions should be quashed at this stage. Strong reliance has been placed by the learned counsel for the petitioner in case of K. L. Subhayya v. State of Karnataka, AIR 1979 SC 711 which has been followed by this Court in case of Divakar Srivastava v. Station Officer, P. S. Husainganj, Lucknow and others, 1990 LLJ 240 and Kamlesh Pratap Singh v. State of Uttar Pradesh (sic) All Danda Nirnaya 593 ; Mahesh v. Union of India, 1986 LLJ 142 for quashing the First Information Report and the investigation in consequent thereon. Learned counsel for the petitioner has also relied on the case 1992 (2) EFR 32 : 1992 JIC 492 (All)-Sewa Ram v. State, in which a learned Single Judge of this Court discussed the provisions of Sections 42 and 50 of the Act in detail and after noticing certain breaches granted bail. Learned counsel has also referred to case of Bhanu Pratap v. State, Lucknow Cr R 115. Learned counsel for the petitioner has also placed reliance on a Division Bench view of this Court in case of M/s. Vikash Books Agencies and others v. State of U. P. and others, in Civil Misc. Writ Petition No. 9549 of 1992, decided on 27 April, 1992. The Division Bench in this case quashed the First Information Report and the charge-sheet on the ground that the Magistrate had no competence to issue a search warrant and for that matter to direct search under Section 103 of the Code in respect of the books in question. The Division Bench placed reliance in case of V. S. Kuttan Pillar v. Ramakrishanan, AIR 1989 SC 185.