DEVENDRA KUMAR MISRA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This application for bail has its genesis in case crime No. 139 of 1996 and 140 of 1996 under Section 8/20 (2) 23 of the N.D.P.S. Act registered at P.S. Shoharatgarh Distt. Sidharthnagar. The incident is of 21-9-1996. On that date around 15.30 hours, according to the prosecution case, a police party of P.S. Shoharathgarh was conducting vehicle checking at the Khunuwa inter-section. One of the vehicles checked by the Police at the Inter-section, was the Jeep bearing registration No. MMY 3117, which was on its way to Naugarh. On a diligent search of the passengers in the Jeep, the applicant and co-accused Ram Vilas were found to have been in possession of contraband namely, Charas contained in plastic cane and plastic bag respectively each weighing 7 kilos. Both the accused persons blabbed to the Police that they had smuggled the contraband from Nepal without any authority. The police accordingly arrested and asked them if they wanted to be searched in the presence of a Magistrate/Gazetted Officer. The prosecution case further is that it is only after eliciting a word from the accused that they did not want to be searched in the presence of the Magistrate/Gazetted officer, the case was accordingly registered against both of them as stated supra.

(2.) Sri D.S. Misra, appearing for the applicants, to begin with, mooted the point that provisions of Section 50 of the N.D.P.S. Act were not observed in compliance, but soon retracted and relented on being pointed out that the search in the instant case was not the result of any prior information and the recovery of the contraband was a chance recovery and in the circumstances, the applicant cannot derive any benefit even if he was informed of his right under Section 50 of the N.D.P.S. Act after the search had already been effected. As a matter of fact, right to be searched in the presence of a Magistrate or a Gazetted Officer, can be taken aid of by a suspect only when the suspect is apprehended on the basis of a prior information of the contraband being smuggled.

(3.) The learned counsel for the applicant then switched gear to another submission of there being no compliance with the requirements of Section 52-A of the Act. This submission of the learned counsel too is sans any substance. Section 52-A of the Act postulates disposal of seized Narcotic Drugs and Psychotropic Substances and lays down the procedure therefor. Non-compliance, if any, of Section 52-A of the Act, would not render the search and seizure illegal, nor will it degenerate the recovery of contraband into one being inadmissible in evidence. That apart, I am of the view that non-compliance, if any, of Section 52-A would not render effective the embargo on the Court's powers to grant bail.