LAKSHMI SHANKAR GUPTA AND OR Vs. STATE

JUDGEMENT

(1.) J. K. Mathur, J. Almost total obfuscation of principles which govern the grant of bail caused by differing subjective responses by different Branches without disclosing any reason, have made it difficult to identify the thread of rationality in the grant or' bail and that has led to this reference to a larger Bench by a learned Single Judge, seeking answers to the following questions : " (1) Whether it is incumbent on the arresting officer to disclose to the accused, while affecting arrest under Section 50 of Narcotic Drugs and Psychotropic Substances Act of a person suspected to be in possession of narcotic or psychotropic substances, that he is entiled to be produced before a Gazetted Officer or a Magistrate for search ? If so, whether such arrested person is entitled to bail under Section 37 of the said Act ? (2) Under what circumstances bail under Section 37 of the Narcotic Drugs and Psychotropic Substances Act can be granted to a person accused of an offence under Section 18 of the said Act if the provisions of Article 22 (1) of the Constitution of India. Sec tion 50 (1) of the Code of Criminal Procedure, Sections 42, 52 and 57 of Narcotic Drugs and Psychotropic Substances Act are not complied with ?" We have heard Shri S. S. Chauhan, Kunwar Mridul Rakesh and Sri Arun Sinha on behalf of the petitioners, Sri Bireshwar Nath, Government Advocate representing the State and Sri Waseem who appeared on behalf of the Union of India at length. To effectively answer the first question with clarity, it is necessary to find: (i) whether an officer acting under Section 50 of the Narcotic Drugs and Psychotropic Substances Act is bound to inform a suspect that he is entitled to be produced before a Gazetted Officer or a Magis trate for being searched; (ii) if so, what is the effect of not so informing ; (iii) whether not informing the suspect would be a sufficient reason for grant of bail; and (iv) what is the effect of provisions of Section 37 of Narcotic Drugs and Psychotropic Substances Act on the question of grant of bail in such a case ?

(2.) ON behalf of the petitioners it was urged that any officer proposing to conduct a search of any person for suspected possession of narcotic drugs or psychotropic substances has to inform the person that he has a right to select the officer before whom he may be searched, under Section 50 of the Narcotic Drugs and Psychotropic Substances Act (herinafter to be referred to as the NDPS Act ).

(3.) SUCH Gazetted Officer or Magistrate can, if he sees no reasonable ground for search, discharge, the person. He shall otherwise conduct the search in his presence.