KAMLESH KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) These two criminal miscellaneous applications have been referred to Division Bench for consideration. The questions that arise for consideration are as. to whether in spite of the limitation imposed under Section 37(l)(b) of the Narcotic Drugs and Psychotropic Substance Act, 1961 (hereinafter to be referred to as the said Act) with regard to grant of bail an accused who is booked under Section 20 of the Act is entitled to bail if the stringent measures and formalities incorporated in the Act for arrest and seizure is not literally complied.

(2.) It is now settled by the decision of the Supreme Court in Narcotics Control Bureau v. Kishan LaL, that provision of Section 37 of the said Act being in negative terms limiting the scope of applicability of the provision of the Code of Criminal Procedure regarding bail, the power of the High Court under Section 439, Cr. P. C. are circumscribed by Section 37 of the Act. The Supreme Court had no occasion to consider the question whether breach of various safeguard provided in the Act in the matter of arrest etc. will render the arrest non est entitling the detenu to bail. This aspect of the matter has been considered by several High Courts.

(3.) There are two petitioners in Crim. Misc. 5050/93R who were arrested by the Police in Dhanbad P.S. Case No. 536/93 under Section 20 of the Act. On 2.9.1993 at 3.20 a.m., Sub-Inspector of Bank More P.S. Jitendra Singh was on patrolling duty accompanied by armed force. He detected two persons in the vicinity of diamond crossing. They were moving in a suspicious manner towards Dhanbad Railway Station. The officer asked them to stop. The suspects ignored the warning and made attempt to escape but were nabbed with aid of constables after chase. The petitioners disclosed their names. From the possession of petitioner Anil Kumar Singh, 5 kgs. Ganja wrapped in a plastic bag was recovered. The second petitioner, Arbind Singh, is the brother of Anil Kumar Singh. The ganja was seized in presence of two witnesses.