RAMCHANDRA JAGDISH VIJAYWARGIYA Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THE applicant is praying for bail. He has been charged for committing offences punishable under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the N. D. P. S. Act')

(2.) PROSECUTION case is that on 9-9-1993 about 8. 15 p. m. T. I. S. M. Khan in charge of P. S. Rajendra Nagar, Indore got information that a person wearing cream colour shirt and travelling in a private V. D. O. Coach bus bearing No. MPO-9 from Indore to Bombay was possessing brown sugar. Thereafter, the police took necessary steps and the applicant was caught in the said bus. 5 kgs. of brown sugar was found kept in a bag hanging on the shoulder of the applicant. The search was taken in presence of panch witnesses.

(3.) LEARNED counsel for the applicant Shri M. A Khan with Shri J. K. Joshi submitted that important provisions of NDPS Act have not been complied with by the prosecution and that has resulted in injustice. He placed reliance on a judgment of Supreme Court in the matter of State of Punjab v. Balbirsingh reported in Judgments Today 1994 (2) at page 109 and submitted that Supreme Court has held that provisions of Section 50 are mandatory and non-cqmpliance of that is fatal. He submitted that it is the duty of the officer who is searching the person of the accused to inform him that the said accused has a right to get searched before a Magistrate or Gazetted Officer, and in the present matter that has not been done. He further submitted that in the present matter, the police played trick and got consent from the accused indicating that he was ready to be searched by members of raiding party in presence of panch witnesses. Shri Khan further submitted that in the present matter the raiding party did not comply with mandatory provisions of Section 57 of the Act also. He further pointed out that some other relevant provisions have also not been complied with and that has led to failure of justice. In these circumstances, making reference to the judgment of Supreme Court in the matter of Balbirsingh (supra) and also a judgment of M. P. High Court in the matter of Ram Dayal v. Central Narcotic Bureau reported in 1993 Cr. L. J. 1444 he prayed for bail for the applicant. This is the sum and substance of the arguments advanced on behalf of the applicant.