DAYANAND Vs. THE STATE OF HARYANA

JUDGEMENT

(1.) IN this partition under section 439 of the Criminal Procedure Code, the petitioner has sought his release on bail during the pendency of trial in a case with the allegations against him that on December 11, 1991, Shri Jagdish Nagar, S.H.O. Police Station Sadar Rohtak alongwith other police officials was on patrol duty and saw the petitioner getting down from a truck. On suspicion, petitioner was apprehended and on his search, 100 grams of Charas wrapped in a polythene paper was recovered. As the petitioner could not produce any licence for keeping the said contraband, a sample weighing 10 grams was prepared and taken into possession alongwith the remaining material. The petitioner has emphatically denied the allegations of the prosecution. In addition, it is contended that a perusal of the F.I.R. does not show that the petitioner was given the option of being produced and searched in the presence of a gazetted Officer. Though the police party was on patrol duty for detecting commission of crime in the area, yet no independent witness from the general public was joined in the said patrolling operation. Further, it does not find mention in the First Information Report that any reasons were recorded and conveyed to the petitioner in terms of Section 50 (1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the 'Act').

(2.) BAIL has been declined to the petitioner by the trial Court primarily on the ground that he is not entitled to bail in view of Section 37 of the Act, as so observed by the Supreme Court in a case reported as Narcotics Control Bureau v. Kishan Lal and others, 1991 Supreme Court Cases (Crl.) 265. Feeling aggrieved against the order of the trial Court, the petitioner approached this Court for concession of bail during the pendency of trial in terms in Section 439 Cr.P.C. and Section 37 of the Narcotic Act.

(3.) IT is worth mentioning that while delivering judgment in Kishan Lal's case (supra), the Supreme Court had placed reliance and extended full approval to the ratio of its previous judgment rendered in Usmanbhai Dawoodbhai Memon and others v. State of Gujarat, 1988(1) R.C.R.(Criminal) 540 : AIR 1988 SC 922, wherein it was held that in view of Sections 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1985, the High Court has no jurisdiction to entertain an application for bail under Section 439 Cr.P.C. read with Section 29 (8) of the Terrorist and Disruptive Activities (Prevention) Act, 1985 (hereinafter referred to as the 'TADA'). Section 20 (8) of the TADA and Section 37 of the NDPS Act are identical in nature. However, while interpreting the scope of Section 439 Cr.P.C. as limited by Section 20 (8) of the TADA, the Hon'ble Supreme Court observed as under in Usmanbhai's case (supra) : -