NATHOONI SINGH Vs. STATE OF U P

JUDGEMENT

(1.) S. K. Verma, J. All these bail applications relate to offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act for shot) and are being disposed of by this common order because similar questions of law have been raised in these cases.

(2.) THE main submission made on behalf of the learned counsel for the applicants in these cases is that in view of the decision of this court in Sena Ram v. State of U. P. , 1992 Criminal Law Journal 2929 : 1992 JIC 4*2 (All) and also in view of decision of this Court in Criminal Misc. Bail Application No. 14479 of 1992 Dadan Singh v. State of U. P. , 1913 JIC 300 (AH) the legal position is as follows : " (a) THE provisions of Sections 42 and 50 of the NDPS, Act are man datory and violation of any of these provisions will raise a pre sumption of prejudice. (b) THE prosecution may show with reference to the appropriate evi dence at tae stage of bail and in the trial that compliance of these provisions was, in fact, made. (c) THE prosecution could also place before the Court reliable evidence to show that irrespective of the violation of these provisions, recovery was made from the accused and no prejudice has, in fact, been caused. (d) In regard to Section 50 of the NDPS Act, the police-officer is bound to inform the accused that he could have his search made before Magistrate or any other Gazetted Officer referred to in this section. (e) Where provisions of Section 42 or 50 of the NDPS Act have been violated and it is not shown that no prejudice was, in fact, caused, mere alleged recovery of large quantity may not be considered to be sufficient to deny bail. "

(3.) WITH due respect to the learned Judges of this Court deciding Dadan Singh's case (supra), Sewa Ram's case (supra) and Dasarath Lal's case (supra), it may be stated that in those decisions the Supreme Court decision in Nar cotic Control Bureau v. Kishanlal, was noticed. The decision of the Supreme Court is binding on all Courts under Article 141 of the Constitution of India. Hence it is evident that the provisions of Section 37 of the NDPS Act which are intended to restrict the powers to grant bail have to be taken into account inspite of the fact that the procedure followed during search and seizure was illegal and provisions of Sections 42 and 50 of NDPS Act were no complied with.