GANGA RAM Vs. STATE OF U P

JUDGEMENT

(1.) These are three bail applications (i) moved by Ganga Ram in case Crime No. 167 of 1991 under Section 8/21/22 of the Narcotic Drugs and Psychotropic Substances Act, Police Station Kothi, District Barabanki, (ii) moved by Tahir in case Crime No. 62 of 1992 under Section 8121 of the Narcotic Drugs and Psychotropic Substances Act, Police Station Zaidpur, District Barabanki, and (iii) moved by Pratap Verma in case Crime No. 56 of 1992 under Section 8121 of the Narcotics Drugs and Psychotropic Substances Act, Police Station Zaidpur, District Barabanki. They raise similar questions of law regarding preparation of the recovery memo.

(2.) Learned Counsel for the applicants as well as learned Additional Government Advocate have been heard. Learned Counsel for the applicants have argued that the recovery memos in these cases have not been prepared in accordance with the provisions of the section 50 of N.D.P.S. Act read with Section 51 of the Code of Criminal Procedure (hereinafter to be referred to as the Code). According to the learned Counsel for the State the search memos prepared in these three cases are in accordance with Section 51 of the Code. He has further argued that even if there are irregularities in the recovery memos then too it , cannot be a ground for bail and that question has to be seen at the time of trial.

(3.) It may be mentioned here that in Section 50 of the Narcotic. Drugs and Psychotropic Substances Act (hereinafter to be referred to as the Act) there is no provision as to how a recovery memo is to be prepared if a search is taken. Section 51 of the Act provides that the procedures of the Code of Criminal Procedure shall apply in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, seizure and issuance of warrants. Section 51 of the Code deals with the search of arrested persons. Sub-Clause 1 of this section is relevant for the purposes of the present controversy which is being reproduced as under: - 51 Search of arrested person. - (1) Whenever a person is arrested by a police officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail, and whenever a person is arrested without warrant, or by a private person under a warrant, and cannot legally be admitted to bail, or is unable to furnish bail, the officer making the arrest or when the arrest is made by a private person the police officer to whom he makes over-the person arrested, may search such person, and place in safe custody all articles, other than necessary wearing-apparel, found upon him and where any article is seized from the arrested person, a receipt showing the articles taken in possession by the police officer shall be given to such person.T This provision of the search of the person comes in operation only when a search of a person who has been arrested earlier is taken. Search can be taken either upon a warrant or without a warrant. This section also does not provide that signatures of the witnesses will be taken on the recovery memo after the search of a person is taken. It merely provides that a receipt showing the articles taken in possession by the police officer shall be given to such person; after his search has already been taken. This section does not specifically provide or cast a duty upon the searching officer to provide a copy of the search memo. The searching officer is only bound to give a receipt which may indicate the articles which have been recovered from the possession of the person concerned and of which a seizure has been made. If a particular item is not seized even though it is found in the search then its memo is not to be prepared, that is to say that the article which has not been seized is not to be mentioned in the search memo and no receipt thereof is to be given. Therefore the matter as to whether a copy of the recovery memo is to be supplied to the person whose search has to be taken, is to be interpreted in terms of the provisions of Section 51 of the Code.