STATE OF H P Vs. MUNSHI RAM

JUDGEMENT

(1.) This criminal revision at the instance of the State of Himachal Pradesh is directed against the judgment dated 9-4-2002 passed by the Additional Sessions Judge (II), Kangra at Dharamshala, whereby respondent was granted bail in the sum of Rs. 25,000.00 with one surety in the like amount to the satisfaction of any Judicial Magistrate at Dharamshala on the conditions set out therein.

(2.) It is held by the Additional Sessions Judge that there is total non-compliance of the mandatory provisions of sub-sections (5) and (6) of S. 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the 'NDPS Act') inasmuch as there is no material on record to show that the authorised officer recorded the reasons and sent them to his immediate official superior as required under sub-sections (5) and (6) of S. 50 of the NDPS Act. It is also held that the mandatory provisions of S. 42 were also not complied with for not recording the grounds of his belief by the Authorised Officer as envisaged under proviso to sub-section (1) of S. 42 for conducting search at any time between sunset and sunrise and also for not sending a copy thereof to his immediate official superior within 72 hours as per sub-section (2) of S. 42. He has relied upon the judgment of learned single Judge of Bombay High Court in Lawarance D'Souza v. State of Maharashtra, 1992 Crl LJ 399, wherein it is held that non-compliance of mandatory provisions should weight with the Court while considering the applications for bail.

(3.) The Additional Advocate General for the State has pointed out that prima-facie the provisions of Ss. 42 and 50 are not attracted as the present is a case of chance recovery and not of prior information. As per the prosecution case, the police party headed by SI Negi Ram, Police Station Shahpur during the course of their routine Nakabandi checked Maruti van No. HP 39-0356 going from Nurpur to Shahpur and found a polythene bag concealed under the driver's seat. On search of the bag, charas like material in the shape of sticks was found which weighed 1 kg. It is further urged by the learned Additional Advocate General that the Additional Sessions Judge while considering the bail application has considered the merits of the prosecution case as if he was deciding it finally.