DAPHNE E MARIE THERESE Vs. STATE OF GOA

JUDGEMENT

(1.) THE applicant stands charged for possession of 5 grams of charas punishable under section 20 (b) (ii) of the N. D. P. S. Act. The charge has already been framed against the accused and two prosecution witnesses have been examined. Two bail applications filed by the applicant before the learned Special Judge have been dismissed. In order dated 6th of April, 1998, passed by the Special Judge under the N. D. P. S. Act, the learned Judge has come to the conclusion that it is a case of chance recovery due to which, prima facie, provisions of section 50 of the N. D. P. S. Act are not attracted in the facts and circumstances of this case. This conclusion is seriously challenged by learned Sr. Advocate Shri Lalit Chari while arguing this application for bail before me.

(2.) THE contention of learned Sr. Advocate for the applicant is that the panchanama of recovery itself shows that it is not a case of random search and seizure and even the Investigating Officer had not considered this to be a case of chance recovery and, on the contrary, an effort/attempt was made to comply with the provisions of section 50 of the N. D. P. S. Act. Nevertheless, it is pointed out that the accused was not informed by the Search Officer that he was to be searched for drugs and in view of the Judgment of this Court in (Shri Sureshkumar Khandelval v. State) 1989 (2) G. L. T. 1, which is subsequently followed in (Mr. Ilan Pierre Yan Wijnalda v. State) Criminal Appeal No. 5/1997 and in (Shri Murata Chiharu v. State of Goa) Criminal Appeal No. 30/1997, the search and seizure is illegal since the accused was never informed that he was to be searched for drugs and the trial is vitiated. In the light of these submissions, it was urged by the learned Sr. Counsel that it cannot be said that there are reasonable grounds to believe that the applicant is guilty of an offence and, as such, bail should not be denied to the applicant at this stage. Reliance was also placed on the Judgment of the Apex Court in (Mohinder Kumar v. The State) 1995 Cri. L. J. 2074 (S. C. ).

(3.) ON the other hand, learned Public Prosecutor Shri Faria urged before me that the facts of the case disclose that it is a case of chance recovery on account of which the question of compliance with the provisions of section 50 of the N. D. P. S. Act did not arise; that two witnesses have already been examined and the prosecution has to examine two or three more witnesses and the trial of the case is likely to be completed by middle of next month and that in case the applicant, who is a foreigner, is enlarged on bail he will not be available for trial.