NATHOONI SINGH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) All these bail applications relate to offences under the Narcotic Drugs and Psychotropic Substances Act,1985 (NDPS Act for short) 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 Sewa Ram v. State of U.P., 1992 Cri LJ 2929 : (1992 All LJ 942) and also in view of decision of this Court in Criminal Misc. Bail Appln. No. 14479 of 1992 (Dadan Singh v. State of U.P.) the legal position is as follows : (a) The provisions of Sections 42 and 50 of the NDPS Act are mandatory and violation of any of these provisions will raise a presumption of prejudice. (b) The prosecution may show with reference to the appropriate evidence at the 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 a 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.) It has further been argued that it was also up-held in Dadan Singh's case on the basis of Dasrath Lal v. State of U.P. (1992) 2 EFR 486 (2) that where the mandatory provisions are complied with, then only the provisions of Section 37 of the NDPS Act will come into play.