HARI CHAND Vs. STATE

JUDGEMENT

(1.) I have heard Shri K. S. Saini for the petitioner and Shti M. L. Chauhan, Asstt. Advocate General, for the State.

(2.) On the basis of the decision of the Supreme Court in Narcotics Control Bureau v Kishan Lal and others, AIR 1991 SC 558, it has been urged by Shri Chauhan that the restrictions contained in section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act), are applicable even where the prayer for bail is being considered by the High Court. He has also urged that there -has been compliance with the requirement, inter alia, of section 50 of the Act, as interpreted by a Division Bench of this Court in State of Himachal Pradesh v Sudarshan Kumar etc. 1989 Cr LJ 1412. He says that the statement made in the case, as is clear from the case diary, by the Station House Officer, was that he had informed the accused -applicant that he has a right to make a request that he be taken to a gazetted officer before the search of his person was undertaken. Shri Chauhan has also urged that, at this stage, the Court has only to see whether there was any material before it to come to a conclusion that the mandatory provisions of the Act had not been complied with and not to weigh the evidence. He has placed reliance upon the observations contained in para 21 of a judgment of the Bombay High Court in Anil Kumar v. State of Maharashtra, 1990 Cr LJ 2058, wherein, while considering the question of cancellation of bail, the High Court, inter alia, observed that: "......The investigation is in progress There is nothing on record to show that there is no compliance with the mandatory provisions. The factual aspect has not been raised either before the Sessions Judge or in the revision petition. Thus prima facie the learned Sessions Judge was quite justified in cancellation of the bail........."

(3.) Shri Chauhan has also emphasised that the trial is fixed before the Court below on August 13, 1991 for the entire prosecution evidence as is mentioned in the order dated June 29, 1991, rejecting the prayer for bail made before him by the petitioner. He has also pointed out that in the heading of this order, however, it has been mentioned that the trial was fixed for August 22, 1991 in the Court of Sessions Judge, Kullu.