Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : S-50 NDPS ACT Applicable To Personal Search Of Body Of Accused And Not For Search Of His Belonging, Like Bag Etc.
JUDGEMENT TITLE : Pradeep Kumar Pathak Vs. State Of U.P. On 29/08/2006 By Allahabad High Court
CORAM : Hon'ble Raghunath Kishore Rastogi,J.


Court No. 10

Criminal Misc. Bail Application No. 16360 Of 2006
Pradeep Kumar Pathak Vs. State Of U.P.
Hon'ble R.K.Rastogi,J

The Applicant Pradeep Kumar Has Applied For Bail In Case Crime No. 20 Of 2006, Under Section 8/20 N.D.P.S. Act , Police Station Dubahar, District Ballia.

The Prosecution Case Starts With A F.I.R. Registered At Police Station Dubahar On 1.4.06 At 11.30 P.M. On The Basis Of Recovery Memo Prepared By Siyaram S.O. Of That Police Station. It Was Stated In The Recovery Memo That On The Aforesaid Date He Alongwith Police Party Was On Petrol Duty And He Saw A Person Coming From The Side Of Ballia Having A Plastic Bag And On Seeing The Police Party He Tried To Run Away Then He Was Apprehended At About 9.20 P.M. And Upon Inquiry He Told His Name As Pradeep Kumar Pathak Son Of Sitaram Pathak R/o Village Nagwa P.S. Dabhar Ballia And He Further Stated That He Kept Ganja In His Bag And Also One Country Made Pistol Of 303 Bore With Two Live Cartridges Of The Same Bore And So He Tried To Run Away . He Was Offered To Give Search Before The Magistrate/ Gazetted Officer But He Stated That He Was Ready To Be Searched By The Police And Upon Search About One And Half Kilogram Ganja Was Recovered And One Country Made Pistol Of 303 Bore And Two Live Cartridges Were Also Recovered From His Possession . For Sample 100 Gram Ganja Was Sealed And He Was Arrested And The Case Was Registered Against Him.

The Present Bail Application Is Only Under Section 8/20 N.D.P.S. Act . The Applicant Has Alleged That He Is Innocent And He Has Falsely Been Implicated In This Case And So He Should Be Granted Bail . His Learned Counsel Submitted That There Is Violation Of Section 50 Of N.D.P.S. Act As Search Was Not Done Before A Gazetted Officer Or Magistrate. The Position In Regard To Applicability Section 50 Of N.D.P.S. Act Has Been Finally Settled By The Hon'ble Supreme Court. Referring To Several Rulings On This Point Their Lordships Made The Following Observations On The Point In Para 6 Of Its Judgment In The Case Of State Of Haryana Vs. Ranbir Alias Rana : 2005(2) JIC 20 (SC):
"6. The Question As Regards Applicability Of Section 50 Of The Act Need Not Detain Us For Long. We May Notice That In View Of Conflict In The Opinions Of Different Benches As Also Differences Of Opinion Between Two Judges Of This Court In State Of Himachal Pradesh Vs. Pawan Kumar JT 2004(8) SC 190; (2004) 7 SCC 735, The Question Was Referred To A Larger Bench. A Three- Judge Bench Of This Court In State Of Himachal Pradesh Etc. V. Pawan Kumar, 2005(2) JIC 413 (SC): (2005)4 SCC 350, Relying On Or On The Basis Of A Large Number Of Decisions And In Particular The Decision Of The Constitution Bench Of This Court In State Of Punjab V. Baldev Singh, 1999 (2) JIC 421 (SC): (1999) 6 SCC 172, Clearly Held That Section 50 Of The Act Would Be Applicable Only In A Case Of Personal Search Of The Accused And Not When It Is Made In Respect Of Some Baggage Like A Bag, Article Or Container Etc. Which The Accused At The Relevant Time Was Carrying."

It Is Thus Clear That The Requirement Of Search In The Presence Of A Magistrate Or A Gazetter Officer Is Applicable In Those Cases Where The Personal Search Of The Accused Is Taken And When The Search Of Bag , Article Or Container Etc. Of The Accused Is Taken, Section 50 Of The N.D.P.S. Act Is Not Applicable And The Search Shall Not Become Invalid On The Ground That It Was Not Made In The Presnce Of A Magistrate Or A Gazetted Officer.

The Learned A.G.A. Submitted That The Applicant Has Got Criminal History Of 22 Cases And So Bail Should Not Be Granted To Him.

The Applicant Has Filed A Supplementary Affidavit In Which He Has Asserted He Has Been Acquitted In Case Crime No. 198/02 Under Section 302 I.P.C. Of P.S. Kotwali , Case Crime No. 69/04( Described As 71/04 In Supplementary Affidavit) Under Sections 323/504/506 I.P.C. P.S. Dubahar And In Case Crime No. 287/01 ( Described As 282/01 In Supplementary Affidavit) Under Sections 323/504/506/307 I.P.C. P.S. Kotwali . It Has Been Asserted In Para 5 Of The Supplementary Affidavit That The Remaining Offences Are Minor And Petty Offences. It Has Been Stated In Its Para 4 That The Applicant Is On Bail In All The Remaining Cases. However, A Perusal Of The Chart Submitted By The Prosecution Reveals That The Applicant Is In Jail In Case Crime No. 12/05 Under Section 307 I.P.C. And Section 7 Criminal Laws Amendment Act Of P.S. Dubahar And In Case Crime No. 16/05 Under Section 2/3 U.P. Gangsters Act. The Allegation Of The Applicant That Other Pending Cases Are Minor Is Also Erroneous Because A Perusal Of The Chart Reveals That The Case Crime No. 283/99 Of Police Station Dubahar Against Him Is Under Sections 147,148,149,302 I.P.C. And In Three Other Cases Bearing Crimes No. 71/94, 289A/2000 And 12/05 Of Police Station Dubahar There Is Charge Against Him Under Section 307 I.P.C. Also . It Was Contended By The Learned A.G.A. That In View Of This Criminal History Bail Should Not Be Granted To The Applicant.

The Learned Counsel For The Applicant, At The Last , Cited Before Me A Ruling Of This Court In 'Prem Chand Vs. State Of U.P.' 2004 (50) ACC 695. In This Case There Was A Recovery Of 11 Kgs. Of Ganja Which Was Below The Commercial Quantity And Accused Had Been In Jail For The Last Six Months, So He Was Ordered To Be Enlarged On Bail.

It Was Submitted By The Learned Counsel For The Applicant That Taking Into Consideration The Above Ruling,bail Should Be Granted To The Applicant.

The Learned A.G.A. Submitted That In This Case The Applicant Was Arrested On 1.4.2006 And Period Of Six Months Has Not Been Completed, So He Is Not Entitled To The Benefit Of This Ruling At Present.

Without Expressing Any Opinion On The Merits Of The Case, But Taking Into Consideration The Facts And Circumstances Pointed Out Above, I Am Of The View That The Applicant Is Not Entitled To Bail At This Stage, So His Bail Application Is Dismissed.

However, It Is To Be Seen That Charge Sheet In This Case Has Been Submitted On 13.5.2006, So I Direct The Trial Court To Complete The Trial Of This Case Within A Period Of Three Months From The Date Of Receipt Of Certified Copy Of This Order And If The Trial Is Not Completed Within This Period Without Any Fault Of The Accused, The Accused-applicant May Apply Before The Trial Court For Grant Of Bail Seeking The Benefit Of The Aforesaid Ruling Of This Court In The Case Of Prem Chand Vs. State Of U.P. (Supra) And In That Case Trial Court May Pass Suitable Order On The Bail Application Of The Applicant.

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