SHAMRAD MOORJANI Vs. STATE OF A P

JUDGEMENT

(1.) This is a petition for bail in connection with crime alleged against the accused for the offences punishable under sections 23, 22, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act'). Before we proceed to examine the merits of the case, a note is required to be taken of the fact that the trial in this case has already commenced before the Metropolitan Sessions Judge at Hyderabad, and the prosecution has already examined nine witnesses so far.

(2.) The learned counsel forthe petitioners drew my attention to the fact that the Supreme Court by order dated 13-10-95 had directed that the trial should be completed expeditiously. However, according to the learned counsel, the trial has still not been completed. On the other hand the learned counsel for the respondent submitted that the trial had already begun and was proceeding in full force; however, because of several applications made by the accused from time to time, the trial could not be comp leted, and as a matter of fact there was no sluggishness on the part of the learned Special Judge in proceeding with the trial. I therefore, do not consider this to be a sound ground for releasing the accused on bail.

(3.) The learned counsel forthe petitioners submitted that Section 50 of the NDPS Act made it incumbent upon the prosecution to bring it to the knowledge of the accused that he had a right to be searched in the presence of a Gazetted Officer or a Magistrate, but the accused was not acquainted of such right by the raiding officer, and therefore, accord ing to him, the trial stood vitiated, and on that ground along, according to him, the petitioners were entitled to be released on bail. The learned counsel for the petitioners further drew my attention to the decision of the Madras High Court rendered in the case of Sunderesan v. State (1) 1995 All India Prevention of food Adulteration Journal 527 in which it was held that in the decision reported in Sewa Ram v. State, 1992 Crl.L.J.2929, the learned single Judge of Allahabad High Court had held that the provisions under Sections 42 and 50 of NDPS Act were mandatory and the non-compliance of the same could be considered at the stage of grant of bail. It was further held that the learned single Judge further observed that the intention of the legislature obviously was that, when such stringent punishments were provided under the Act, there should be a sound safeguard to ensure that innocent persons were not harassed or unnecessarily detained by any arbitrary or whimical actions of the police or other authorities. The learned counsel for the petitioners also placed heavy reliance on the decision of the supreme Court rendered in the case of Saiyad Mohd. Saiyad Umar Saiyad & Others v. State of Gujarat (2) 1995 All India Prevention of Food Adulteration Journal 508, in which the Supreme Court observed in para 5 that having regard to the object for which the provision of Section 50 had been introduced into the NDPS Act and when the language thereof obliges the officer concerned to inform the person to be searched of high right to be searched in the presence of a Gazetted Officer or a Magistrate, there was no room for drawing a presumption under Section 114, illustration (e) of the Indian EvidenceAct, 1872.ByreasonofSection 114, a Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. It is further observed that the observation made by the High Court that "it may presume (e) that judicial and official acts have been regularly performed" could not be taken into consideration, because there was no room for such presumption because thepossession of illicit articles under the NDPS Act had to be satisfactorily established before the Court. The fact of seizure thereof after a search has to be proved, When evidence of the search is given all that transpired in that connection must be stated. Very relevant in this behalf isthe testimony ofthe officer conducting the search that he had informed the person to be searched that he was entitled to demand that the search be carried out in the presence of a Gazetted Officer or a Magistrate and that the person had not chosen to so demand. If no evidence to this effect is given the Court must assume that the person to be searched was not informed of the protection the law gave him and must find that the possession of illicit articles under the NDPS Act was not established.