IN THE HON'Bl,E HIGH COVRT OF DELHI

AT NEW DELHI
BAIL APPLICATION NO. 2107 OF 2021

IN .THE MATTER OF:

. .. .

PAWAN LAMA . .. PETITIONER

VERSUS

THE STATE
(GOVT. OF NCT OF OELHI)
... RESPONDENT

FIR No.4$9/2020
(Dated: 12.11.20~0)
U / s.20 NOPS Act
PS: Amar Colony
(Investigated by .
AATS/SED) ·
Arrested on 12.11.2020
L.D.O.H. 29;07.2021
L). O• \--\! .-l'"l- o.&-.2,,,.,2.,1

INDEX I
[Link].1 PARTICULAR I [Link] I [Link] I
1. Ca,se laws relied by the petitioner in
support of contention raised in his bail
•
Application.
·. Herry @ Ikwunnaya Kizito Ifeanyi vsl
State, decided on 8th February, 2021

3. Chuck Collins Vs. State of Himachal

Pradesh [Link](M) No. 1838 of 2019,
decided on January 3 rd 2020 while
relying on Gurbaksh Singh Sibbia and
-' others V. State of Punjab, 1980 (2) sec
56$.
Para No. 7
 . . .. .
4. .. L,al ..•Kt.1mari · vs. State of V.P. on 11
31'-Ji .
'
Ncivernber
..
2020 .
5. Ibe Cb"t:tke Ebony vs. State of Goa, Nov
28, 2019.
L; 0 -'{3
. ' ,.
6. Chizoba Clement Vs. State {NCT of
Delhi) BAIL APPLN. NO. 3181/2019, ~\.\-l{'
Ot. 24.12.2019.
. .
-7.. Abdul Majid Bhat vs State of J&K, on 6
September 2018.
l\1" ~ S' 3>
Bheru Singh VS . The
8. State of Madhya
~l.\- S{
Pradesh, 20 February 2018.
9. In Yunis and Anr. vs State of U.P.
(1999 CriW· 4094) while relying on
s.=}---: s,
Nanha V. State of U.P. (1993 Cri w
938)
10. Ezeofoma Elochukwu @ Frank vs State
6f Karnataka on 15 December 2020 . .,
~o- 6L.f
..
11. Stephen Chidubem vs. State of
Himachal Pradesh, Cr. MP (M) No. 39
;
ts- =,s-
of 2020.
12. Ifeanyi Frank vs State of Himachal
;
Pradesh, [Link](M) No. 232 of 2020. 16-i3
13 .. · · Harpreet Singh Bahad vs Dri on 23
- September 2009 iY~lt)S
. Author: Mool Chand Garg.
14. fyiohammed · Fasrin vs The State, 4 I
September 2019.
10,-11~
·1s. State of Himachal Pradesh v. Pawan

. Kumar ("Pawan Kumar"), (2005) 4 SCC I l :f. - /3o

35.0.
I
 , __ '· .,
16. Arif Khan @ Agha Khan vs The State of
Uttarakhand, decided on 27 April
Isl- fl.f~
2018.
•·

17. Sk. Rajµ VS. State of West Bengal,.

(05.09.2CY18 - .
l¼l-/6~
18. .Vakalatnaina is already on record.

Petitioner
(In J.C.)
[Link]
Dated:25.08.2021 Through .
(l.9--t"~ -
(R.D. TYA(H ~ AS,SOCIATE;S)
(Advocates & Solicitors) · I
-inrol: D-870 / 1993
Chamb~r No.276,
Patiala House Courts,New Delhi-110001
Mobile: 9891882066 9312276235
Email: [Link]@gmai,com
I
 (j)
I

•.
IN THE HON'BLE HIGH CO{1RT OF DgLHI
. . AT NEW DEl,HI I
BAIL APPl,ICATION NO. 2107 OF 2021

lN'l'HE MATTER OF:

PAWAN [Link] ... PETITIONER
VERSUS

THE STATE
. (GOVT. OF NCT OF DELHI)
... RESPONOENT.

FIR No.459 /2020

(Dated: 12.11.2020)
U/s.20 NDPS Act
PS: Amar Colony
, ' (Investigated by
MTS/SED) _
Arrested on 12.11.2020
L.D.0.H. 29.07.2021

CASE LAWS RELIED BY THE PETITIONER IN

. SUPPORT. OF CONTENTION RAISED IN HIS BAIL
APPLICATION .
. Most respectfully Showeth:

. . .
. . ' .
Issue l - .Whether in a case of bail under section 439
Cr.P.C, .it is appropriate for a court to differentiate
based on. nationality of accused?
L In. the Gase of Herry @ Ikwunnaya Kizito Ifeanyi vs State on
8 February; 2021, the Hon'ble Delhi High Court speaking
through Hon'oie Justice Rajnish Bhatnagar, while grating bail
held that,

I · . "8. So far as the contention of the Ld.

APP that the petitioner is a foreign
· . national and he may not be availabl_e for
trial, this contention of the Ld. APP can
· ·be taken care of by directing the
petitioner to produce two solvent
sureties for securing his presence during
the trial."

"9 ..... .in case, he is released on bail, he

would be living on rent at a monthly rent
of Rs. 6000 /- per month at his house.
' ' '
This factum was got verified and as per
the verification ·report filed by the IO the
· said Raj Kumar Yadav has made a
statement to the effect that he would
allow the petitioner to H:ve in his house
at a monthly. rent of Rs. 6000 / - per
··. month and the paper formalities would
be done in case the petitioner is released
on bail.".

"10. Therefore, keeping in view the fact

that the quantity of contraband falls
within the category of intermediate
category, petitioner has clean past
antecedents and the charge sheet stands
filed, this court is of the considered

'
 opinion that the petitioner deserves to be
enlarged on bail subject to furnishing of
two local solvent sureties ..... "

· 2.,In Chuks C9llins Vs State of Himachal Pradesh, On 1::>ail

jurisprudence,. referring on the landmark case in Para 7,

2.1 [Link] Singh Sibbia and others v. State of

Punjab,1980 (2) sec 565, A Constitutional l;?ench
.of Supreme Court holds, -

"30. .. .It is thus clear that the

question whether to grant bail or
· not depends for its answer upon a

1
variety of circumstances, the
cumulative effect of which must enter
the judicial verdict. Any one single
circumstance cannot be treated as of
universal validity or as necessarily
justifying the grant or refusal of bail."

3- In the caseof Lal Kumari vs. State of U.P. on 11 November

2020, Hon'bleAllahabad High Court remarked -
5. "There is no criminal antecedent of I
the accused-applicant.· She has been
languishing in jail since 14.12.2019.
.. This Court finds that if the accused-
. _a_pplicant is enlarged on bail with peavy
_sureties, there will be no likelihood of
similar offence being committed by the
. a9cused-applicant. · Considering these
aspects, I find it to be a fit case for grant
of bail."
 .· 4~In the case of lbe Chuke Ebony vt;;. $tate of Goa,' Nov 28,
2019, ijon'ble Bombay High Court, the acc1,1sed alre~dy arrested
in FIR No.] 10/2007, court held that,
I

12. "Merely because he 1s a Nigerian

national there is no reason to deny him
bail. What is important to be considered
while dealing with the .application for
· · .~ail is whether the presen·ce of the ·
· . applicant could be secured during the I
trial or whether he would be in a
position to influence the proseGution
witnesses"

5. In the· case of Chizoba Clement Vs. State (NCT of Delhi)

BAIL APPLN( NO. 318I/2019, Dt. 24.12.2019, Hon'ble High
.. ·. '.co4rt of Dellfrheld that,

"In view of the facts and circumstances

of this case, the petitioner is admitted

. to bail on the following conditions"

1) The petitioner shall appear in person before the

trial court on 16.01.2020.
· 2) The petitioner shall appear before the I.O./SHO of
. '
.p:s.
. . Maidan Garhi at 10 am on .
every alternate day.

3} The petitioner shall provide his mobile telephone

number to the LO./ SHO of P.S. Maidan Garhi, which
he undertakes to keep operational at all times and in
the event of change of his residential address/mooile
.telephone number, . shall inform the same to the
I.O./SHO., P.S. Maidan Garhi.

· 4) The petitioner shall deposit his passport with the

trial court/concerned court/duty M.M.
 5) The petitioner shall take steps to get his visa
· extei:ided and shaJl fulfil the . fqrmalities as pe.r
requirement of FRRO, I:>elh1.
6) The petitioner shall not leav~ the NCR/ country
without the permission of th~ trial co1,1rt.

· 7) The petitioner will not directly or indirectly make

· · · . a:ny inducement, threat or promises · to th~
· complainant or any witness during the trial or
tamper with the · evidenc~.
- 8) The petitioner will remain regularly present before
the Trial Court. ·

Issue 2 .. Whether petitioner is entitled to get the

.benefit of Principal of Parity?
I
1- In.· the .case of Abdul Majid Bhat vs State of J&K, on ·6
September 2018, the court while giving the benefit of ·
principal of parity held that,
· "The petitioner herein appears to
I
be facing trial at Baramulla. One
of the accused, as referred
hereinabove, has been admitted to
bail. by a Coordinate Bench and on
the application of principle of . ·
parity, the petitioner herein is also
.·held. to be entitled for being
· admitted to bail. It also requires to
.. be underlined herein that nothing
·has been brought on record by the
respondent State from which it
.· could be deduced that the
petitioner herein is involved in any
other case other than referred
herein."
 2- In the case .of Bheru Singh vs Th(:) State of Madhya Pradesh,
· 2() February 2.018, court while applying the principle of parity
held that
"No criminal antecedents of the
. -applicants and this is the first ever
criminal case registered against
· the applicants µnder the Act, but
without commenting on merits of
the case, I am of the opinion that a
case is made out for grant of bail
. tO. the applicants. Hence, this
application is allowed."

. . I
3~ The Allahabad Court in Yunis and Anr. vs State of U.P.
· (1999 CriLJ 4094) while relying on Nanha v. State of U.P.
( 1993 Cri LJ 938) held that:
''5. ... .. where the case of co-
.a..ccused is identically similar and
other co-accused has been granted
bail by the Court, the said co-
accused is entitled to be released
on bail on account of desirability
. of consistency and equity. As
· regards the principle of parity in
[Link] of . rejection . of bail
application, it may be observed.·
that law of parity 1s a desirable
-rule."

I
 . . . .

Is,ue. 3 .... Intermediate quantity of the contraband?.

1-In the case of [Link]~fom~ Eloch-q.k:wu @ Frank vs State of

Karnataka on 15 December 2()20, cot;1rt held that-
"The tQtal quantity seized from the
petitioner is 51 grams of cocaine
·: which is more than small qt,1antity
; and less than commercial
· quantity. Though the learn€::d
counsel for the petitioner argues
vehemently that there is no
compliance of sections 41 (2) and
42(2) of the NDPS Act, it may be
. stated that these are the aspects
· to be established before the trial
court. As of now the · mahazar ·
indicates that the Police Sub-
·Inspector ·after receiving
information brought it to the
· notice of his superior officer, 1.e.,
· . · the Police Inspector, who in turn
authorized him to conduct the
TEtic:L This authorization falls 1
· within the scope of section 41 (2) of
• the NDPS Act. However, the fact
remains that the total quantity
seized from the petitioner is only
51 grams and it appears that the
petitioner has no criminal
antecedents. Therefore, lenient
 view may be taken for the first
..
time to enlarge him on bail."

. .

2-In th:e case of Stephen Chid\lbem vs. Stat~ of Himachal

Pr~dc,$h, Cr.. MP (M) No. 39 of 2020, Decided on Septemb¢r 22 1
· 2020, ~.

.
. ·"it was held that, The possil;>ility of
.

the accused infh1encing the course

. of the investigation, . tampering
..'
with evidence, intimiclating
· witnesses, and the likelihood of I
fleeing justice, can be taken care
·of by
. .
1mposmg elaborative
· conditions and stringent
conditions."

3..:rn the case of Ifeanyi Frank vs State of Himachal Pradesh,

[Link](M) No. 232 of 2020, Decided on July 3, 2020, similar law
[Link] down in this case also while enlarging accused on bail.

. 1:

Islsqe ·4- Adniissibility of statement of co-accused.

1. Harpreet Singh Bahad vs Ori on 23 September 2009

Author: Mool Chand Garg
"18. In the case in hand, the
...
.situation is worse because nothing has
been recovered from the petitioner very
of contraband is from accused Nos. 1
and 2. It is only on the basis of their
I

statements that the petitioner is sought

 to be ·. implicated. Insofar as the
. '.· _'·· ,·,·

stat<::ni~nt of petitioner under section 67

of the •NOPS Act is concerned, as stated
above, ll<::! has already retracted the said ·
statement and in these circumstances,
unless and until · the statement is
corroborated the conviction may or may
not take place. Thus, the petitioner is
entitled.. to be released on bail.
.Accord)ngly, I direct that the petitioner
be released on bail on his furnishing bail
bond in the sum of Rs. 1 1 lakh (rupees
one lakh only) with two sureties of the
. like amount to the satisfaction of the
trial court subject to the condition that
he will· not hamper the progress of the
case and .would not involve himself in
similar.·. activities and would deposit his
passport with the respondents and will
report to the local office of the DRI once
in every month."

2. In the· case of Mohammed Fasrin vs The State, 4

September 2019, court held that,
· · "We, for the decision of this case,·
therefore; proceed on the premise that
the confession is admissible. Even if it is
admissible, the Court has to be satisfied
that .it. is a voluntary statement; free
from any pressure and also that the
accused was appraised of his rights
 '
before recording the confession. No such
material. has been brought on the record
of this case. It is also well settled that a
confession, especially a confession
recorded when the accused is m
custody, fs a weak piece of evidence and
th:ere ·must be some corroborative
evid~nc~·; . The confession of the co-
accvsed, which was said to be a
corroborative piece of evidence, has been
discussed above and , is of no material
vah.1.e .. Therefore, other than the two
confessional statements - one of the co-
accused ·and the other of the accused,
the . prosecution has gathered no
evidence to link the appellant with the
commission of the offence. As such,
without going into the legality of the
admissibility of the confession, we hold
that even if these confessions are
admissible then also the evidence is not
suffrcierit to convict .the accused."

Issu.e 5- On compliance of Section 50 of NDPS Act.

[Link] State of Himachal Pradesh v. Pawan Kumar ("Pawan

Kumar"}, (2005) 4 SCC 350 a three judge Bench of this Court
held . that
.
the search
, .
of an Article which was being carried by a'

person in hishand, or on his shoulder orhead, etc., would not

• attract S~ction 50. It was held thus:
t
 @
"In common parlance it would be said
that a ·person is carrying a particular
article, specifying the manner in which it
wa.s carried like hand, shoulder, back or
head; etc. Therefore, it is not possible to
include these articles within the aml:;>it of
the word "person" occurring in Section
50 of the Act ... After the decision in
Baldev Singh, this ,; Court has
. ·-,., .

c;:onsistently held that Section 50 would

only
. . . apply
. .
to search of a person anc:l not'
· · . to any bag, Article, or contain~r, etc.
beingcarried by him."

2. In the case of Arif Khan @ Agha Khan vs The State c,f 1

Uttarakhand on 27 April 2018
Author: A M Sapre

•. ·· "28. First, it is an admitted fact emerging

·. frorri. ·t4~ ·record of the case · that the 1
appellant was not .. produced before any
. i.

Magistrate or Gazetted Officer; Second, it

is also ~n admitted fact that due to the
aforementioned first reason, the search
and recovery of the contraband "Charas"
was not made from the appellant in the
presence of any Magistrate or Gazetted
•· Officer;· 'third,. it is ,also an admitted fact
that none of the police officials of the
raiding party, who recovered the
I contraband "Charas" from him, was the
Gazetted Officer and nor they could be
 · and, thyrefore, they were not empowered
to make search and recovery from the
appellant of the contraband "Charas" as
provided l,[Link] Section 50 of the NDPS '
Act except in the presence of either a

... Magistrate or a Gazetted Officer; Fourth,

in order to make the search and re(::overy
... · ·. t
of the··contraband ?-rticles from the body
-. of tli_e suspect, the search and recovery
· has · to ·. be in conformity with the
reql,[Link] of Section !so of the NDPS
Act. It is, therefore, m~ndatory for the
prosecution to prove that the search and
recovery was made from the appellant in
the presence of a Magistrate or a
Gazetted Officer."

3. In case of Sk. Raju vs. State of West Bengal (05.09.2018

I
- SC): ~burt held thus:

"The mandate of Section 50 is

precise and clear,· viz. if the person
intended to be searched expresses
to the authorized officer his desire
to be taken to the nearest gazette
· officer or the Magistrate, he cannot
be searched till the gazette officer
or the Magistrate, as the case may
be, directs the at1thorized officer to ·
do so ...
·10 view of the foregoing discussion,
•. we are of the firm opinion that the
 object with which right 1,Jnder
Section 50(1) of the NDPS Act, by
· way of a safeguard, has been
conferred on the suspect, viz. to .
. check the misuse of power, to
. avoid harm to innocent persons
and to minimize the allegations of
planting or foisting of false cases
by the law enforcement agencies, it
would be imperative on the part of
the empowered officer to appnse
the person intended to be
.searched of his right to be
searched before a gazette ·offi~er or
a Magistrate. We have no
hesitation in holding that in so far
as the obligation of the authorized
officer Under Sub-section (1) of
Section 50 of the NDPS Act 1s
concerned, it is mandatory and
.requires a strict compliance.
· Failure to comply with the
prov1s1on would rende.r the
recovery of the illicit Article
suspect and vitiate the conviction
. if the same is recorded only on the
basis of the recovery of the illicit
Article from the person of the
Accused during such search.
Thereafter, the suspect may or
may not choose to exercise the
 right provided to him under the
said provision.

·We are of the opm1on that the

·-concept of "substantial
_compliance" with the reqµirement
.of Section 50 of the NDPS A~t
introduced and read into the
mandate of the said Sec;:tion in
Joseph Fernandez (supra) and
· [Link] Shankar Dubey (supra) is
rieither . borne out from the
language of Sub-section (1) of
. Section 50 nor it is in consonance
· with the dictum laid down in
Baldev Singh's case (supra)."

··.·.The prin~iple which emerges from Vijaysinh is that the concept of

"sub~tantial. c6mpliance''. with the requirement 'of Section 50 is
neither in accordance with ·the law laid down in Baldev Singh,
nor can it be construed from its language. [Reference may also be·
made to. the · decision of a two judge Bench of this Court in
Venkateswarlu]. Therefore, strict compliance with Section 50(1)
by the empowered officer is mandatory. Section 50, however,· 1
applies only in the case of a search of a person. In Baldev Singh,.
,the Co~rt
' .
held, "on its plain :reading, Section 50 'would come into
. . .
' , ,

play only• in the case of a search of a person as distinguished ·

. •. . ' ,t
from search of any premises, etc.;,
I
"Iri common parlance it would be said
that· a person is carrying a particular
article, _specifying the manner in which it
 was c,;:[Link] like hand, shoulder, bac;:k or
head; etG, Therefore, it is not possiple to
include these articles within the ambit of
the word "person" occurring in Section
50 of the Act ... After the decision in
Baldev Singh, this Court has
· ·. consistently held that Section 50 would
only apply to search of a person and not
to any. bag, Article or container, etc.
being carried by him."

"Thus;· if merely a bag carried by a I

person is searched without there oeing
· apy search of his person, Section 50 of
. . . -· . . . . .
the· NDPS · Act will have ·no application .
•.
Bµt if the bag carried by him is searched
. : . ·. . . . I
and his person is also searched, Section
50 ·of ··the ND PS Act will have
application."
"From Exhibit-3,... Merely because the
Appellant was given an option of
searching PW-2 before the latter
. conducted
. - .
his search, would not vitiate·
. .
. - . .
the search. In Parmanand, in addition to·
the option of being searched by the
gazette officer or the magistrate, the
detainee was given a 'third' alternative by
the ·empowered officer which was to be
searche!d by an officer who was a part of
the
.-
raiding
. .....
team. This was found to be
.

contrary. to the intent of Section 50(1).

The option given to the Appellant of
 searching PW ~2 in the case at hand,
before the latter searched the Appellant,

.. did not vitiate the process in which a

.·. s~arch of the Appellant was conducted. 1
. .. .

··The search of the Appellant was as a

matter:-of fact conducted in the presence
of PW:-4,. a gazette officer, in consonance
with the voluntary communication made
by the Appellant to both PW-2 and PWA.
There· was strict compliance with the
requirements of Section 50(1) as
. stipulated by this Court in Vijaysinh.

Filed by
New Delhi
Dated:25.08.2021

(R.D. TYAGI & ASSOCIATES)

(Advocates & Solicitors)
Enrol: D-870 / 1993
Chamber No.27.6,
Patiala House Courts
New Delhi-1 lOOOl
Mobile: 9891882066 9312276235
Email: [Link]@[Link]
 * IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 25.01.2021
% Pronounced on : 08.{)2.2021

+ BAIL ;\PPLN. 184/2020, Crl. M.A. 9071/2020, Crl. M ..A.

12160/2020 & Cr..M.A. 17066/2020.

HERRY@ IKWUNNAYA KIZITO IFEANYI

..... Petition~r
Through: Ms. Sushma Sharma anQ Mr.
Girish Kumar, Advs ..
versus·

. STA TE ...... Respondent

Through:·t :Pt;
_·'
M.:P. Singh, APP with Insp.
:'•f•.,

.' . l~.~rf~h Kasana

. CORAM: ;• .,Jl;:,)F?j\->;;.;1{
. HON'BLE MR. JUSTICE!> .I'SltBHATNAGAR
·••·.··orili•~~\,,)/:1:L,,.,
RAJNISH BHATNAGAR, J.
· · · l. ' By way of this order," lshatlafapbie 6fthe present petition filed
under Section 439 Cr.P.C. on behalf of the petitioner for grant of bail in
case FIR No. 82/19 U/s 21 NDPS Act & 14 Foreigners Act, registere<;i
atPoHce Station New Friends Colony (AA TS).

2. Biiefly stated, the allegations against the petitioner are that he is

a foreign national wh~ has been staying in India without any visa. It is
. BAILAPPLN. 184/2020 Pag~ 1 of 5

I
 . forthe{alleged against him that on 15.04.2019 at 8:4S p.m; in front Qf
Batra .Cinema, Community Centre, NF(\ he was apprehended ·1:1nd
found in possession of 39.6 grams of cocaine including the weight of
polythene. The petitioner was allegedly found in possession of
intermediate quantity of cocaine.

3. · I have heard the Ld. counsel for the petitioner, Ld. APP for the
State and also perused the records of the cas~.
' ' '

4. Itis submitted by the Ld. 2oi1nsel for the· petitiqn~r that th~
quantity recovered from the petitiohet·is' intennediate quantity and
hence there is no bar of Section Jy/()f,,:tfie NDPS Act. ·She, further
. . . ...: ~;-:,- . ..:, :,· .··.
submitted that no public witness:,h~~,}b,e,ericif oined by the IO at the time
of arrest and recovery from the)P,,e~lt\}«~j{ She further submittecJ that
: ·· _. · . /. r,t,: .-,::.'~-\ "'" -f.-.:,_
the prosecution has not fol10:<~iea::~1s~1ml11:~itory provision of Section 50
.' - . <' .·.·. . (· ,:·_ :·/~ ,?· :t <\-, !, -~ ',:> 'i//'./ ~ . '
of the. NDPS Act. ft is further
.. .... ·· .. . ·;
sti,brriitt6',f 1,:y:,her that. the case property
.1-::-':_·\~} .1;,:~;.~~-..-:~_}_1\·-('.,.
has been tampered with'before sehd1ng'the same to FSL astwo sampl!s
were drawn at the same tjme. She further su.o,niitted that the petitioner
,·, ,::::-.:::{"")
has clean past antecedents.·.·
•.
5. On the other hand, Ld. APP for the State has submitted that all
the cotit~ntions raised by the counsel for thJ petitioner are matter of
[Link],: He further submitted that before the petitioner could be arrested,.
lle thre~ one polythene after taking out from his right side pocket of
· the pant on the road, so there was no occasion to serve the notice U/s.
BAIL APPLN. 184/2020 Page 2 of 5
 50 of the NDPS Act upon the petitioner before his searc.h and
provisions of Section 50 of the NDPS Act does not apply in the facts
and circumstances of this case. It is further submitted by the Ld. APP
~hat the petitioner is a foreign nationc1J and in [Link] he is enlarged W1
bail, ·he will not be available for trial.

6. · .. As 'far as the contention of the counsel for the petitioner with

regard to the tampering of sample and non· joining of thy public
witnesses, the same cannot be lookecfinto atlthe stage of bail 1;1nd are
matter of trial.

7. .· .T~_is is not in dispute that th~i,:¢~n;ttaband

1
recovered from the
petitioner
. . ...
is 3 5 gram of cocaine [Link] .th¢r,said
·:·.·[ contraband falls
\' · . within the.
. '

categqry of intermediate categoi·y, 'fh¢[Link], rigors of Section' 37 shall

. - ,.. • . - . , ·_·:,:,/ ::\-~ .;'-~\r.\,_
_'='<·:.-._C:- .
not apply. The challan has alread#:.lw~h.,fiJed before the Ld. Sessions
Coµrt and the presence ofthe ·:~,~iti~J~f;fik~·•fequired only during the
, =· t/\\(.~~;i:{,~:. :...:/'-{-.1.,r , ,
trial. The respondent/state has not pfaced anything on record to show
[Link]. petitioner is a habitual offender and is: involved in similar type
. of offence and the allegations ag~[Link] th~·pgtitloner are subject to proof
4 ·· during the trial.
. . :: : . ·.'..
,,' . , .

· 3( · ··· ,$~tJar as the. conter1tkm ofi$t;;;lDU/AP)ft~~·1H1ft~ :p~ti(tf~i~t'.•iji$}Jt1

.teriign,:,fiitioria.r·.and-..ll~·•iiiay. notijiI,a~il~bl~;fQj;~ili~[;i'{~ii~~,tllifiii~tI
tlie/~~;'t)l~:F'ic~·.•[Link]~¢ili¢~re,::9~!~fwl1~~:ifml:~i~~altiji9ifil:ifi!hlq1J~
.twQ.~~[Link]-suteHes-·for sl1ihid11g fifi!Jfltsence;atirlii~tf1111·i·
BAILAPPLN, 184/2020 Page 3 of 5
 . ·9 .. ·JDY!fiigithe .QOUr$e .9f/ltearin:g;:i'dtthf~; 'Wl~itl~liititli~t:siiti~lllli~IJ;\$.)
.-:p'i~!it ~iltt~¢.org::· ~e·· addrijs~:··or':~ll1ilJl~~mnllhl'.lllill'.tQlJlilllltllii
1

•'i~.:~p~$~~~~~·~?'is•'.•[Link]~·;li~'"~~ll'a•li~~1~t~i~~~im~1i~~1il!lllm1~t
r~rit\1f ~~:'i~OOO(-•:P~r·• mont11·.atniSh◊~s~;;,\tf:ni·$11i!~[Link]'w:
~Q. .•~§'l,~t:tll~•··••:Veri ficatiQn ·•Jiport:: mi~Jt;ijy ,tll~?ti':ti;{~ :~ri{aI\IIJllil:~n .
Ya.~ijjj1J~ii'.iiiaiie: astat~ri1eiit
•. tr¢titt~rl'.ii"toliv¢ in. his ·house~f a ~1~;iHiy i<:m(Q·f ~Ig~Q~~i~~~i1ijt1Qn~l9:
.' ,·and'..tfitq1aper, fonm1lities. woufd/ .·doiie ~\'.-cij,,:,:· _re '[Link]~h~l'is
1

.rel~a$~ifon:·bail.
•· Joi·· ::wt{ef~fore} keeprng::}6/.{
corttra,l?ii~ifilis\vithirr
.
the c;~¢g~~~ '

ha{gJij:~_past anteceden rs and ·t&~i,:#li~ii~·(~h~'€t•'ijtt(~ds ifiiecj}'~r!;{ij:~ti~

9
is: P:f,iliiiio~nsidet~d .opjft16nJliat~Jij¥~~~: }•.· . ijfliii\ti~s:fi1:,;~•.iiOOifg~it

•·. nu;:;;:~:=:.~~m1:::::::.~:Ji~~,tt!;::!~::~:!t:~: ·
·shall:,[Link] 'art undertaking thathe·iha!Fin:tirtl.~f~i-'1)1$ W~et~,ijij:~fµt§ tt,~
1 1

th~ qpn~itn~d .sHo on tHe f;t, dcty;i~iK:~':-~pY\;qiQ±itq~:ih'~iiretid~iterf~i~H,

also,:1¢I~p1:ionic::ally. repo11 at the 10Jar•police •~t,tllii\:Qµ~;:a;,iw~i'~lf;t&'t:t
....

e\iecy;:1&(~11day. On each such ()CQ~§ion. th~'\f;i1itfi)ti~r.::s1~ijf:ti:igiti1;{1"1\l•'

·ctb·~fii!!f'itt·',frijili•i•lb.i$.·•.ftlQ~f(e:••·•·pwli1ie1ili~~1~i:'$~,r~'&:tffl~tfp~l·Illlii~tqij'.
<;oµc~~.~d/sb as to hi:formthe SH0f.<ati&ut lits bttJrint Jij;ij~tio~•,

BAJLAPPLN. 184/2020 Page 4 of 5

 11. In the event of violation of any of the condition m€imtioned above,
the respondent/state can lay a motion for cancellation of baiJ of the
. petitioner before the trial Court. Concerned Superintendent Jc1:il is ·
directed. not to release the passport of the petitioiwr without the
petitioner obtaining permission from the Trial Court. The bail
application is disposed of accordingly. All pending applications (if
any) are also disposed of accordingly. Copy of this order be also sent to
the concerned Jail Superintendent.

. RAJ~ISH BHATNAGAR,l
FEBRUARY 08, 2021
SlfnWnl. ':

[Link],PPLN. 184/2020 Page 5 of 5

..
I
. IN,THE ti.![Link]. [Link] HIMA.Q!"'.!Ab_PRARE;~l::l, ~Hlfy1k8
/--·--•.'\

[Link](M) No. 1836 of 2019

/ /-"'- \ o-
~\,j)
Judgment Reserved on_: 2~1.~.20190
Date of Decision : Ja 1:1~ ~'-
,,
020
Chuks Collins . .)llz rt[tioner.
Versus
\/(j>
> -
,_/
. $tate of Himachal Pradesh (P=--~~ . [Link]<;mdent.
..,. ,. . "\'.:'.•")-·I ' .... ··, ,. ·.• . . ·,.
·Coram: _ 1"--0 ._::::./ .
' ''

The Mon'ble Mr. Justice An~(?'j;l-"~~tk,,~ra, Judge.

. ~ -~ ..

Whether approved for repof(ing,~ Yes.

F9r the petitioner : ;Nl~R_u~h-r,inder $ingh Jaswal, Advocate.
I For the respondent _.. : .:'MJ>As~wani K. Sharma, & Mr. Nand ~al
·· / r·\
l\h'akur, Additional Advocates Oeneral, for
/,.:::_j
! :/
\ ·"·
)tJ,\e respondent-State.
,,'\ '---........ /
~ \ \ j
Anoop [Link].
. . .' . ·,.............. ·. ~,,
· -· . · .•· 'Z_Vf~)der trial prisoner; holder of Nigerian Passp__ ort, has come

(~~ this Court under Section 439 c;,f the Code of Criminc;1l

.• )'~◊~- ~ ~~pre, 1973 (CrPC), seeking bail, µnder $ection 21 of Nar,;otic.~

0 /'~~rugs and '~

Psychotropic Substances Act, 1985 (NDPS Act), for
-
·,.
\'•.
-........,_
(

··v possessing 90.5 grams of heroin (Diacetylmorphine); and uncjer

Section 14 of Foreigners Act, 1946, for staying in India after expiry Qf

·Visa.···

· 2; · · Based on a First Information Report (FIR),Jhe police arrested .

the petitioner, on Mar 10, 2019, in FIR No. 30 of 2019, dated Mar 8,

1
wi1ct1icr reporters o·r Local Papers may he allowed to sec the _judgment?

::: ()ownloadec/ on • ()3!()1n.02() a():37:43 :::H<;HP .

 2

·" -201 ij, registered I,mder Sections 21 & 29 of the NOPS Act, in the file

. of Poiice Station Bhoranj, District· Hamirpur,

1Himacha!,,✓~,q·1sh,◊

~isclosing cognizable and non-bailable offenses. I h~ffr\l ,

oo,~nsel for the petitioner and Mr. Nand ~•~!\ij)jitional

Advocate General for the State of HP. Tf't Po~e~ave file(:! thE;?
><
latest status report. . /:::·::~
.· . {( ) 1
FACTS: \ '- . . / /
3'. . . The gist of the case, s&ffiei~nt ti,. --;;~cide th~ pre~erit batil
·> petition, disclos~s tne follo,\n{(~~t~atrix: .. ..

· a) Qn Mar 7, 2Q'19~ ~l(ce party; Meaded by the Station

~,.,:?
Hou~e °..~iceyfS~l~}.of the Police Statiqn ijh°:ranj, District
Ham1rput,....,,HP" 'recc;>~ered 6.80 gram~ of herQin from twQ
~ · I 1' · ,, '~., __ .... ,,/

·.. •· perso~j~a~e)y Dipender@ Oipu and Amit CMaunan@ Mittu. ,

. ·,. "···· /
·. .-•i·
. _. b .:··_·"'[Link]. [Link] of tne. Meroin, the Police arri:;stei;l .both.· tnes.e
.. .ers~ and thoroughly interrogated them. D,uring their
•• • C • (c~e rogation, the said persons revealed tnat they Mad
. . >~ "~"-> '.'.)~u,cnased heroin from one African person wno claimed tq be a
,,<. \)~~\··r:d~zen of Nigeria. The accused further told that they wcpuld
"<··(/ ·· ..) · : · chat witM Mim on WliatsApp, and also call Mim [Link]~p.
'-. ' .
c) Upon this·, one of the police officials decoyed as a bwer
and got in touch with the said Nigerian National. After striking a
· deal, the said Police officer went to Delni to take the controlled
-delivery of the substance. TMe Police took along tne accused
. -for identification .

. . d) On Mar 10, 2019, the Police detained tne said African,

· - from a locality in Delhi. TMe other accused persons identified

::: D9wntoacJecJ on • (}3!01l202Q 2.Q::/7:43 :::lfr;HP

 . him t9 the s;:!me Nigerian Nati9nal, p(l!titioner herein, frQm
. · whom they had purchased heroin. .
//.,---':\.
. ., \ ◊

~) . Aner that, the police searche~ the resid~nUal h~~/I the

pftitioner and recQvered 90.~ grams qt heroin. <;"· ·, /'\,)
' -f) The Poliqe also observed that the (1/tsa/o~dia had
1
expirep. Consequently, the lnvesti'gati~ef"9ffic~r,~~ed $.14 of
the Foreigners Act, 1946, in FIR.
/ /
r:0···
." ..
,1"'''•,, \

!;1) ·On obtaining transit re~and f~((l_~pelhi Court, the Police

brought the c;1ccused toJ~irpl,lr·;---HP, where the Police
~ . ~ Mcllgis. [Link], wh.· Q remanqed
_ produced him.· before t~-r (u~iq)
him initially to the Po~~4)tody and later on to the J1,1C;li9ial
custody, which i§.c~ul~ till date .

.A_NALvs,~ "No~ R~~s~)iNG: ,

4. · Whilf (de~li~g:·~itti' the bail applications of foreign nationals,

the . fuost ~-ig~!Jl!:!,~rf{ challenge the Courts face is to set;:U,re their

·. ~s./(d~t~[Link]
- of Criminal [Link], 1973, (CrPC), has clas·s· ified

. _◊ ( ~)~ of offenses, bailable and non-bailable. Section 2(a) of the

- ~/-
~·~-.
· . ~)efines bailable. as. the offenses shown as '[Link]' i~ the. First .
. . . Sched,ule of CrPC or any other law. All the left-out crimes are ·
. . . . :; .
. ... ..
· deemed to be Non-bailable. In bailable offenses, a Police officer is

under an obligation to release the accused on bail, subject to her

furnishing bail bonds. It means that a foreign national cannot be

denied bail in a bailable offense. Therefore, the question of securing

[Link] is not an absolute' condition. However, in heinous and

::: Oownlqaded on • o:,101no20 20:~7:4~ 1::HCHP

 4

• ' ' ' i

· ·. bone:-.chilling crimes, all which certc;1inly . are n9n;.i;)ail~ble, the ·

. p'resence of the accused must be en$yred b,y tMe CQ~e,ore◊
[Link] the bail. Thus, while dealing with bail peti~s Q~sed
. ,- .
w.h·.·Q'are not the citizens of India, the most im~~~~ter to

keepjn mind is the gravity of the offense. /0 ~0

I

5.. . . Section 2 (vii-a) of the NDPS Aci ~~mmercial guantity

. as th_e quantity greater than thE: quantkJ,:sp~cified in the sch~dul~~

.. · and S. 2 (xxiii-a}, defines a smf~~attJtt; ;;'the guantity le$ier tha~

. (' , , I

th_e quantity specified in ~~ic~5u;, pf NOPS Act. The remainin~

quantity falls in an upde'ii;~9~fegory, which is now generally Qalle(J
/ ( ..... ,""' \ ,,..,., :

as intermedJa:te):iu~_ri'tity(An Sections in the NOPS Act, which sp~cify

an offense\ ~lso /~k-~~;:n that minimum and maximum sentence,

' ' ' ' , .. ~::::./. ' . ·. ' ' '

· ... ·: ·. ·.. d.~.~.er9~~~~pon the quantity o.f the s~bstan. ce. Comme... r~ial ~Uc;!ntity

•· .· .· ·t.·. . ./~~. ~inimum sentence of ten years pf imprisonment an~ a .

~
~~.;~~
. •.· /~.')
fine of Rupees One hundred thousand, and bail' is subject

(,)A)~o the riders mandated in S, 37 of NDPS Act.

-......, \ ......... ". ' .

·,_;; JUDICIAL PRECEDENTS:

6;: -irr;~~otlhman Dassv:• Rest,Bihiidhar,~ k~l~t;]~Qi6)}.~($~I;'

:'~•,a·; .: .Tne·.,aW u,6'1tfeir ·sij9jipnfl~$?~r)pl¢'';t~l\jij~;;~!lililH"f1'tf'

·,fffii1k~Y~l9?f tnt11.1,~:tiv,ry.•·.~~c,liiJit1,"~ffl.e,ii!l!ll~nu~,1m1¥1ll1
'i£ij11it~:ijfj~t11auwt' · ·

::: Downloaded on • 0~/911202() 20:J7:4;, ;::HCHP

 5

'7: 1t~iiit1rb~l<$nc'§XrldiJst'tiJH~'~t~i11:iti:w:i~i1r~tifittiit~11~111i
.... ,f~illtlf~",wijs. Acon$tltytt~~!ijf b~niqffi'fllf9Piiil,1illl~~f~!~"'i
'' .,_/.'.3:6':<
:.;1fis·thU$ cl~~fthalW6~/'.;1ue
.9rJi6t4epenqi:;fofit$.,c~n . ·
.. ·:;t11e:9y·111ulativ~ .eff~9f9f
·,,'' :v~r~(ct:Any One slrigle ci(
' ;unJv~rsal :vaUclity !or: as.·• rt iW~Uij
refusal of bail'' · ( ·0
>
8._._.·. ~n Kalyan Chandra Sarkar v. Rajefr~~j~o@. Pappu Yac;Jav,
2005 (2) SCC 42, a three-member benct:,'"Qf..$~preme Co\.,lrt hold~.
- -. t'·., ··:-~ . .
0
ff • • /

/18. It is trite law that ,P.e~~al,~Jiberty cannot be taken

· . :'away except in [Link]'-vtith~the procedure established
· . by law. Personal )ibe(ty is >a constitutional g11arantee.
· .• ljowever, Article 2t-whJc~@uarant,ees the above right also
. · .contemplates _dfjprrv~tio.r:i-' of personal liberty by pnJcedu,re,
· establisped~bf l~w)L}nder the criminal laws of this co1,mtry,
a peripo1n-acc_ysea>6f offences which are non-bailable i$
lia,ble \ol-~e d~t,ined in custody during the pendency of trial
. ; . ,.mless 'h~ ·is -~rllarged on bail in accordance with law. Such
· · detention··caiinot be questioned as being violative of Article
·. - ~ · ~1~nce
- the same is authorised by law. But even persons
• .~ ·- . ·cs~used
. of non-bailable offences are entitled for bail if the
/·_;':..., . 1.1rt concerned comes to the conclusion that the
v \, '< ) ·ti? secution has failed to iestablish a prima facie case
.('_,'<<~"_ .. ::~.alg·[Link]. him and/or if the court. is [Link] for [Link] to be
. ~"> '· ·recorded that in spite of the existence of prima facie case
·· ,· · · ·· there is a need to release such persons: on bail where fact'
· situations require it to do so. In that process a person
whose application for enlargement on bail is once rejected
.is not precluded from filh1g a subsequent application for
grant of bail if there is a change in the fact situation. In
such cases if the circumstances then prevailing requires·
· .that such persons to be released on bail, in spite of his
earlier applications being· rejected, the courts can do so."

9. . _In Gudikanti Narasimhulu v. Public Prosecutor, High Court of .

·· Andhra Pradesh, AIR 1978 SC 429, Supreme Court holds:
 6

'! "6ail or jail ?" - at the preHrial or i;,ost-convicti<;>n stagE3 •

· _belon-gs t_o th-~ b,l_urred area of th_ e. orirnina_, jlJs-tiQ-
a_n<;l lar1;1ely hinges on the h1,mch of the t:?ench, othe )sf\
e_ sist_.
fl'.l I
called judicial discretion. The Co<;le i~ cryptiq gn thi tQp,io/ ◊
ant;i the_ c;ourt prefers to be tacit, be the orc;ler _custod1 _l <5'c
not. And yet, the issue is one qf liberty, ju$lib~ PVl;ltiW
safety and b1,m;ien of the public treas1,.1ry, al~f \Jl}nicf<lJ~)st
-•· that a developed jurisprudence of bail i~~hl~fral)9 a
socially sensitised judicial process. As'@"hamber<~\Jdge in
this summit court I have to deal with Ht~ 'u~anc;Jlr(~d caSf;l-
flow, ad hoc response to the doc,ket-15e~€1 _the flickering
candle light. So it is desiral:;>le thatft)'r(:t,~t:>]?ct is <;iisp9sel,'l
of 9n basic principle, not impro~~d)~revity orape<;J as
discretion. Personal liberty~rive(l·wnen !;>ail is refu$~d,
is too precious a valu~- ~ [Link] constitutional system
1
recognised under Artic~ <(1 that the cn,1cial power to
- negate it is a great<tru~\~ercisable, nqt casually but
jvdicially, with live~~"n9& for the cost to the individtJal
- and the commyr:iity~o gJamorize impres~ionistic qrders as
<Jjscretio~_§l_ry '/flaY>p occasions, make a litigatiy~ gamt;>le
_- decisi~(ot;a fu_lidary ntal right. After ,;JII, personal liberty qf
· an adc~sed ,10(""¢6nvict is fundamental, suffering lawf!JI
. eclips~oi:iJyjn_)erms of 'procedure established by law'. The ;
. last [Link] of Article 21 are the life ofrhat humanright. ·

·- - · _ •-~~f?~doctrin~- of Police power, constituti~rially validates

..{':,)i~)lJtive processes for the maintenance of public -order,
A C\
( ~ 'urity of the State, national integrity and the interest of
l/','~~,,~::.~:j1P, publ!c generally. Ev~n s?, having regard to the solemn
\ '"'~>- <:_Jssue involved, depnvat1on of . personal free~fom,
( · ./ /'·. ,, _ ephemeral or enduring, must be founded on the most
( ·✓ · serious considerations relevant to the welfare objectives of
·<> · society, specified in the Constitution."

10, In
. .
Siddharam Satingappa Mhetre v. State of Maharashtra, - _·
(20}1) 1 SCC 694, Supreme qourt holds,

''Relevant consideration for exercise of the power

111. No inflexible guidelines or straitjacket formula can be

provided for grant or refusal of anticipatory bail. We are
clearly of the view that no attempt s_hould be made to

::: Qownloadecl cm • 03/0112(120 20:;J7:,13 :::HCHP

 7

· ·. provh',te rigid c;1nd inflexible _glJicjelines in this respect

.· bec;::ause all circumstances anq' situations of f1Jt1,1re c;:ann9~ . ,
b.· e clearly yis1,1a:il.i~e. d for the. grant o. . r refusal of. an.· tici. ato.'¥
. bail. In qonsonailce with the legislativ, intention th
or refus~I of antic;;ipatory bail sho1Jld necessarily depen o,
t::~! f. ·
[Link] and circum. $tances of each. [Link].. Asaptlv'~[Link]
in the Constitution Bench depision in ii;> a' ~e
. [(1980)2 sec 565] that the High Qol)rt o~~- c;,f ·
Sessions to exercise their jurisdic;:tio(~der .e tion 4~a
Criminal Procedure Code by a wise c;1n~ c;:areft1l u e of their, .
discretion which by their long training-a~\~perience they
. . are ideally suited to do. In any ev~t;-~~ wthe legislatiye
. mandate which we are bound to re~[Link] ;md honoµr.
, , !~ , ...../

· . ·112. The following factor~~°'-~,J}e·rameters can _be taken

. . into consideration while ~~~nt}wit~ the anticipatory bail :_

. .LThe nature and ira~ ~'t~e accusation and the exact

·•·· :~,~far~~~t ;~%";~)1st be:. pr9perly comprehen~e~
ii.. The;aJ~·.ebed.~'b!ef,of the applic~nt including the fact as to
· wheth~ thf\ accused has ·: previously undergone
imprisb~ ~-ila:n conviction by a Court in respect of any I
· ·. ·f~o~~~b~~c:;
. ··~· the applicant to flee from justice;
._· ..· ·. .. . ·. . ·;<)s.X.:-. ·J.·lie [Link] of the accused's likelihood to. ·repeat
.. •· . . . . ◊ .. (<:'', ~- ar or the other offences. . . . :.
,; <:(\<:=:J~i
<'~.. Where the accusations have been made only with th~
·..~:-.
·. ·. .·""V .. ject ·of injuring or humiliating the app. licant by arresting
<:ot5···
'/', .·. · . . htm or her. . I
. ·. , \ . · . .· . vi. Impact of grant of anticipatory bail particularly in cases·
'0 of large magnitude affecting a very large number of
people.
vii. The courts must evaluate the entire available material
against the accused very carefully. The court must also
·dearly comprehend the exact role of the accused in the
.case. The cases in which accused is implicated with the
help of sections Mand 149 of the Indian Penal Code, the
court should consider with even greater care and caution
• b~cause over implication in the cases is a matter of
·· common knowledge [Link];

:;: QQwn/C111<if!c! on • 03/0112(120 t0:31:43 :::H(;HP

 8

Yiii. While considering th(;! prayer fpr grant 9f anticipat~_r:y

bail, a balance has to be stru"k between two f~~f9~'\
namely, nq prejudice should be c;atJsec;I to the fr~e. f~~d) ◊
fvll investigation and there. ShQuld be preventio~ ~ ·
·harassm_en( . humiliation anc;I unjustified d~teFOi'c;>~- pf th~ .•·
ac;cused, · (', ◊ > .-.
ix. The court to consider rea$onable · ap)¥(~~i~ o,f ·
•t.·~. [Link] of the witness or apprehe~l99 of fh~..·t to the
complainant; ~ •
·x. Frivolity in prosecution should alyt~$~i c. nsidereq and
. it is only the element of genuinen~~ ttJaj shall haye to be
. ·.[Link].~d in. [Link] .m· [Link]/9f~t of'b...iif,,.and.. in the .eve. n. t. of..
.· there being some doubt .~ <t9 the s~n!Jrntness Qf the
.···. pro~ecution, in the normel(',3<:?~,../ f events, th~ a9cused is
.•entitled to an order/~f ~I:~~) ·

11. In
...··.
Dataram Singh IJ:.,$t~t~,()f Uttar Pradesh,
/ ,.,.,........... . . . _ '. .,, I -
(201
..
~) $ sec 22,
Supreme Co~~-~olp~; ) ·1
• . /,.: _;,~••~~/ '-,.,"•-.,••/!/ I

· ' .. , . . ~ ti,mda~'e~t~I postulate of criminal jurisprudence is· ·

. the· pre~~mpti◊n of innocence, me~ning thereby that a
. ·· . P,er~on is···believed to be innocent until found guilty. .
. · ~ • ow_e-v___er,
, there are instances in our criminal law where a
· . ~ · •'<_ers~ onus has been placed on an accused with regard
;,,·~:,"-. · · ,some specific offences byt. that is another matter anc;f
<> •· \ \. :.) IQ rs not detract from the fundamental postulate in respect
··. ),~.
<:\.<. .:...-::!.(jy other offences. Yet another important facet <;>f our
"V
. A.. · .· <--crim_ in al jurisp~udence is tha. t_ th~ ~rant _of bail i~ tile ge~eral
'\." /"" · · rule and putting a person rn Jail or m a prison or 1n a .
· <) correction home (whicHever expression one may wish tQ
v use) is an exception. Unfortunately, some of these basic
principles appear to have been lost sight of with the resu!t
.that more and more persons are being incarcerated an<;I
for longer periods. This does not do any good to our
· criminal jurisprudence or to our society. · ·

2; There is no doubt that the grant or denial of bail is

· entirely the discretion of the judge considering a case but '
· even so, the exercise of judicial discretion has been
·circumscribed by a large number of decisions rendered by

...
I
 9

.. this Qourt and by every High Court in the country. Yet,

i occasionally there is a necessity to [Link] whetlJi.r
~
denying bail to an accused person Is the right thing~t~~.:
◊
· on the facts and in the circumstances of a case. V,
3~ While .·so introspecting, among the facto~rs t6at. need
· .be considered is whether the accused was res ~~~g
··investigations when that person perhaps~~~)best
opportunity to tamper with the evid~n~e "oi: ~[Link]
·wjtnesses. If the investigating office.; /does n'dt . find it
necessary to arrest an accu,sec;l"" p@rson during
investigations, a strong case str¢11;1ld, )evmad,e 01,1t for
. . placing that person in judicial cus1\dy...a~r a charge sheet
• . . is filed. Similarly, it is impQ'~t to. ascertain wh. ether the .
·.· accused was participati~l(l~t~ investigations to the .
1
· satisfacti_on of the inv~ s{lg_a'tirig • officer a~d was · not
absconding or not /4i'ppeir1pg when required by the
investigating officeP:'·Surelly,if'an accused is not hiding from
oiftc,~•--or
.. the investigatin,,9 ... is hiding due to some genuine
. ·.and ex~r~_s_se~ fe~'at being victimi~ed, i~ would .be a fa?tor
[Link] a/J(!,Qg'e wbuld)need to consider In an appropriate
case. It (is al~e"sp~ce'ssary for the judge to consider whether
the ac~u'a~d)s ,~ first-time offender or has been accused of
. · ..other offence( and if so, the natL,Jre of such offences and
.· . . . · . · ~"'~r$"'Qr · her general conduct. The povert,Y or the d,eemeq
. . \.'i(d~ht status of an accused is · also an extremely .
· · . · . ·. <0)~9ffant fac~or and even P~rliament h~[Link] riqtice of it
hK
· ◊ ( t·:-:-\ (ncorporatmg an Explanation to, Section 436 of the Code
· .·. . . ~·- ~
·. \":"-..J)a.f
· 1Criminal Procedur.e, 1973 . An equally soft. approach tq
'--<~lA6arceration has been taken by Parliament by inserting
(,,, ) /"'-
'··,,' <. ' .
~ ·. ..-
Section 436A in the Code of Criminal Procedure, 1973.

,) 4, To put it shortly, a hum~ne attitude is required_ to be

adopted by a judge, while dealing with an application for
· remanding a suspect or tan accused person to pqlice
· custody or judicial custody. ,;here are several reasons for
· this including maintaining the di'gnity of an accused person,
. howsoever poor that person might be; the requirements of
· Article 21 of the Constitution and the fact that there .is
·•. · enormous overcrowding in prisons, leading to social and
·other problems as noticed by this Court in In 'Re-Inhuman
Conditions in 1382 Prisons, 2017(4) R.C.R,(Criminal) 416:

' .. '

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 10

·2017(5) Recent Apex Judgments (R.A..J.) 4Q~: (2017) 1Q

.sec 658. · . . . ·. /:~~--,.\,, , .o·
5. The historical. l:)ackground of th~· provisi9n fQr b~'il(ti~ .
~een [Link] and lucidly explained in a recent d~c· i .
· dijlivered in . N·.ike. sh Tara chand Shah. v.. Uni'~--f In , .
2()17 (13) SCAl,.E 609 going back to t~~d . s q_f~e
Magna Carta. In that decision, reference ~~ to
Gurbak$h. Singh $ibbia v. State qf Purl}a_b, ( '9g) 2 SC()
565 in which it is observed that lt w~}iteld wa
~cick in
Nagend_·ra v. King-Emperor, AIR 19~4 ..Qat4lQ that b_·. ail. is_ ·
not to be withheld as a p1,.mishm~t:""'·R efNnce was also
' made to Emperor V. Hutchinson, Axl4..19J1 All 35($ wherein
it was observed that grant rbf1)ail h:;i"th~(rvle and refµsal i~
the. exception. The provis1~ f~/'Ybail is therefore l?Qe-old
··. and th. e liberal. [Link]~~-~-~n"t.
· o.Ahe_. P_ rqvision for b,;3il is ·.
almost a century old, -~l'.!~J5vk to colonial da¥s, · ·. ·

6. However, w~_sh~l~t1,e 1.mdersto9d to mel:3n that bail ·

sh?~ld be,;_gr~nr:r~i~ [Link] ca~e. The 9:ant or ref~sal of
•• bad 1s 7nJ.1rJlly ··~iitb1'}.,the d1scret1on of the Judge hearing the
. matte~ ind tqopgh'.that discretiQn i$ unfettered, it must be_:
exerci~e\( [Link] and in a humane manner and
c;ompassionately. Also, conditions for the grant of ~ail
not to be so strict as to. be incapable of complianc~:.
. . • y,. making the grant of bail illusory." .

. .• .· .. . ·◊ :( ~ p ng in view the quantity of contraband, I ar/J QI th~ ...

•. • ;,,_·. ~ ~ ~ r e d opinion that the judleial custody of the petitioner is not

' "~Zv
', 'y
going to serve any purpose whatsoever and' I am inclined to grant

him bail on the. following grounds:

a) As per the FIR, the substance involved in is Heroin,

mentioned. at Sr. No. 56 of the Notification, issued under
' ..
Section 2(viia) and (xxiiia) of NDPS Act, specifying small and
cbmmercial quantities of drugs and psycho,ropic substances.

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 ll
•@·.
.
~..
.,.,
'

b) The quantity of the substanGe recqyered is 9Q.5 gram~

"
(heroin.). which. is ..less than Comm~rcial Quantit: by~,....9~:fter
than Small Quantity. As such, the rigors of Sect1oi(fz/t the◊
NP. PS. Act shall not apply [Link] pr,sent ~a,.~•··<'.:~•ul~the
·.[Link] case has to be treated like [Link] 9~~t<ihnt of
. : bail in a penal offense. · i) ~ "'-,"'\ ·.
c) The petitioner is a Nigerian Nat~.?~~/t'l~ldin~ Passport of
Nigeria, bearing Passport No. ,;(te~),ss). The $tate h~s
already verified from th~~onc~r:o~:d./ Em!:,lassy about the
genuineness of the Pass po .,"'-"',
~ ( >
d) The petitioner i~ ~u~JY 'since Mar 10, 2019.

e)
,, ...

· .. criminal ,history ~ffry➔ bail petitioner.

"
In the statµs.~.p'orf,)'there is no menti<;m of the previQUS
/ '· .,'

. .' / / i / , .._,,/ '\. '/~,_::::,,./ ' ' . ' . ' .

; ~ . cr~e it~y~st1gation i~ the Cl3S8 is . complete, and pplice

· · report tA(t~(S~ction 173 (2) of the CrPC. alr(;lady stands filed h:, ·
· . :· ·~·:··)s,9urt of competent jurisdiction. · ·
· ·. . · .>~ "-l)m of the considered opinion that, prima facie, petitioner
··◊ ((0'~made out a case for grant of bail and his incarceration is
~\,,,_~:::}.)~ going to serve any purpose.
<:::0
. . <"~
~ l..CAs a result. the present petition iS allowed. The petitioner shall

"0 be released on bail in the present case, in connection with the FIR

mentioned above, on his furnishing a personal bond .in the sum pf

' . '

Rupees One lac fifty thousand only, (INR One hundred and fifty I

thousand only), to the satisfaction of the trial Court, by depositing it '

in the official account, as per the details and directions of the trial

Court. Despite whatever is being stated in the following paragraphs,

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 '

12

..
, I .
requirem~nt 9f Chapter XXXIII Q'rPC the

p.:etiti◊Aer shall furnish two sureties in the sum qf zZ,~ten◊

th9u$and ea~h, tQ the satisfaction of th• trial Gourt. _ •~
14. I have arrived at the amount mentioned a~[Link] _,qf"'QP!1t'money
0
<v / ')'
t:,y converting the an111,1al per Gal'.)ita in99~t>Qf '·~i~a. and 1;1fttr
. / ', .
convertinr;1 it in INR i!;lnd rounding it IJP~~;:?:\~~per C,cppit~ incom~:

·.·. • of Nigeria is 2033 l..JSD. Multiplying it ~fth)~te of rupee tq !)$0, it

,',, '' ' , i'<~ ' '•,,,,,,,,/ ,·., ! ' ,, , , '

comes to approx. 1,45,000 l~~~~-119'jcfto INR, 1,50,()QQ/ (make

·.. itctearthat these are not ~~~i~, ,;nd it is the aP!iiQh,ite discr(1)tiQn

· . ofthe Collrt grantin~-ba~t~"~r,t'i~e at the bonds and its vallJe,

I .· .. ' : . ! (''"'"\ \ ,,., ..
· 15. · The logi'§~6eh1Qd-fliJ~ishing personal bond with bank depo~it is
. ' . ,· ·: (( ('\ ,,._.,,.,,.~ ' :,

that we kno,W"tb~.tl f,(fricans have hardly any relatives in India. l;ven

t~it:Jrie'n<:ls are just contacts, and it would be impossible for them to

., (~

· /~~ them before Court, also if they stand as sweties. W~'rn

\'< ~~-o/•tionals are asked to furnish surety bonds, then the sureties

<:::, <>'-.._~~etain at least 100% of the bond amount as security to take care of
"-..,? proceedings under Section 446 of CrPC. However, even after the

triali~ over, it is practically impossible to recover the money back

· unless the surety turns out to be an h~nest person. Even in such a

[Link], what is returned is Principal without any interests. It has

.·• 1ed,t~ ~ racket of swety providers in exchange for money: Therefqre;

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 the purpose of swety bonds has pec9me an exercise in futile, anq
th~ better option is to keep the security deP,osit. . /;::~~\ ◊
.I 6. · · o···
· n receipt of the money in the official ac~ouiit,, the i'rii~ou_ rt .
~hail issµe ~irections to appropriate Co~rt a n d ~ ~ ~ : t~

. [Link] this amoun.t in an automa. tically rene-~'&(• ~(9e~sit, to l>e

Qpened in any bank, owned or contro~e-f-~ Centre, State or
( ( ' \
their units. In case any orders are pass~~-u~er $ection 446 CrP<;;,

[Link] the bail amount shall be

.
q~¼~
(1( '---.__/
a;-~er sqch directions. After.

• the :completion_ of the T~a1.~'a,~ p~:riod sp,ecified in, S. ,4_37-A, but

1

. subject to the instryctio~s~ef /the Appellate Courts, if any, all this

money, alopg::::with (l~~~)~~t.· ~xcept taxes, shall be refunded to the ..

petitio11er, ~tr.~p;i~~;-~g in his bank· account, whether in India or

, .............•'

o~(~wing the law. .

1
' . 1
~ attesting officer of the personal bonds shall mention the

/~<>~\ii~11ent address of the petitioner along with the Passport number

'\ . ··--:,,-'./
) '-·--
nd details on the personal bond. The . learned counsel for the
. ', '·0
<"' ' .
( ' , v', / ' ,

~ . '
petitioner, as well as the attesting officer, shall explain the conditions
. I.
i:>f this bail to the petitioner.

18; This Court is granting the bail subject to the conditions

mentioned herein. The petitioner undertakes to comply with all

directions given in this order, and the furnishing of bail bonds by the

. petitioner is acQeptance of all such conditions:

II
 14

a) The Petitioner shall not leave India (;Jyring the [Link] Qf the
trial, am;j after thc;1t in terms of the bqnd supmitteq [Link],r Segti~ 4~'7-
. of CrPC, without the permission qf the Trial Court.
A /()' .◊
b) The petitioner undertakes not tQ contact the,,R_9mpla a and
~itnesses to threaten or browbeat them o r ~",a~y f,Se [Link]

·. tactics. .. . . . '\ '-, <"\.•. )

q) The pet1t1011er shall neither mfl~eQ~,,nor ~to cqntrQI the
.investigating officer, in any manner wha~~?~ · · • · ·

.d). The petitioner shall not hamper ((~,ejtigation: .

e) The petitioner undertak~.~~ttto ma;(..any inQucerm. ent thr~at or

. promise, directly or indir~JN_'e investigating 9fficer or any .
person acquainted witl'\(tR!:f·f~)s. 9f the case to dissuade him frqm
·.· ..·disclosing such factsio~'el Q,\\>Wt or any Police Officer or t~mper with
.
the ev1denc.e.
/, . . . . . . .0...\ ••....., •/
• ......
j
.
.
. . I ( ~ ) .

f) Tt;i'~~petitidr:i~ ttpdertakes to attend the trial.

( ( \ "\ '··· , . . . .
g) · In. t~se,) tf.,e petitioner is arraigned, as an accused of the ·
'~ ',, ,, /'. , . . . . . . . .
commission- of any offense, . prescribing the sentence of '
~..._(~~~ment for more than seven years, and also if .the bail
/. -~~~oner is arraigned as an accused in any case [Link] the
◊ (, \ "'\) .P visions of the NDPS Act, irrespective of the quantity, be it small
/' (°\"-,: ... i)
,"""\)·--2_'9,JJ'antity, then within thirty days of knowledge of such FIR, the
~ petitioner shall intimate the SHO of the present police station, with all
the details of the present FIR as well as the new FIR and it shall be
~
open for the State to apply to this Court, for cancellation of this bail, if
·Jtdeems fit and proper.

19, ·. It ii:, olarifie<:I th?tt the present bail order is only for the FIR;· as' I
[Link] above. It shall not be construed to be a blanket order of

bail in all other cases, if any, registeredlagainst the petitioner.

"

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 15

•.
·20 .. · Any observation made hereinab<;>ve shall not be taken a~ an_ ·
. . -- I
th8<~_a_·_:i·:~~rt◊ -
--~x-pre·s-sion of opinion on the me-rits•of the cas.e, an-d-
sliaU deeide the matter uninfluenced by any observetion ma~this
2
order, ~')◊. /
·
21. Although the Court has granted baiLit~v~r'-~~c~used, still
\ ( V

neit_her the issue comes to an end, nor ,9~:_~erms of justice. In

the interest of equity and fair f?l~y. it~~ed~\urther consigeration.

,Given :the following reasoni,~l-,_,go:~,/is requesting the ·Trial_

-Cou'~ to expedite the tria\ <(·, ,~- ,_ , -_ ._ -_ --_ · ·

. ,-
":. .Every visitor t~~.~t\;Vcomes for a specific pu rpqse and !Qr

a limited tirr;iE(:8bw~◊er)il in the interregnum, she gets arraigne<;l a$

' . an accusel_l~_.9\~~;~:~ 'case, then she gets stuck up here. ;t may
• ' ' ""'----.""""·'',✓.

b~W~~ic to her, and to her education, family, friends, business.,

'\''-

«~(ti~ .
;

/. _. ~'6er of things, which an ordinary human being cannot even

The answer lies In the speedy disposal of cases of foreign

<~'0 ~ationals, whether they are in custody or on bail.

"" 'v' ..
23. Petition stands allowed in the terms as mentioned earlier.

Registry to send a copy of this order to Special Judge/Sessions

Judge, Hamirpur, HP.

Copy dasti.
(Anoop Chitkara),
Judge..
_- Januar,y _i__, 2020 (PK)

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 Lal Kµmari vs State Of 1,J.P. on 11 November, 2020

. Alfahabad High Court

Lal•I<umari vs State QfU:P. on 11 November, 2020
· Bench: Dinesh Kumar Singh

' . ~ .
HIGH COURT .OF JUDICATURE AT ALLAHABAD, LUCKI\IOW BENCH

Case : - !;JAIL No. - 5115 of 2020

' ,. . . . . . .

.Applicant :. , Lal Kuma ri

Opposite Party : Stat~ of U.P.

Counsel for Applicant :- Dhananjai Kumi;ir Tripathi

tounsel for [Link] Party :- G.A.

Hon'ble Dinesh Kumar Singh,J.

1. Heard learned [Link] for the accused-applicant as, well as learned Additional Government
Advocate and gone through the entire record.

2. By means of this·application under Section 439 CrPC, the accused-applicant seeks bail in
Crime/FIR No.0450 of 2019, under Section 8/20 N.D.P.S. Act lodged at Police Station Rupaidiha,
· District Bahraich;i

3. Learned counsel for the accused-applicant submits that it is alleged that from possession of the
· [Link] of Charas was recovered in seven packets, however; sample was
taken from orie packet; as per Circular No.01 of 1989 dated 13th June, 1989, the' [Link]
. to be takenfrom ~ach-packets and, the seizure memo of each packets should have been·prepared
separately; the prosecuting agency has conducted search and seizure operation in violation of the '
· afore~aid Circular and, therefore, the accused-applic~nt is entitled to be released on bail; the
accused-applicant is female and, she has no criminal history; she has been languishing in jail since
· 14th December, 12019'.:The learned counsel has placed reliance upon the order dated ~2.10.2020
passed by the coordinate Bench at Allahabad in Criminal Misc. Bail Application No.19743 of ~020
• 'Phool Chand Ali Vs. Union of India' .

4; On the othe1; harid, Mr. Shailendra Tripathi, learned Counsel for the State, has opposed the bail ·
···.application and 1 submJtted that the quantity of narcotic substance/ contraband recovered from th~·
possession of the. acc~sed-applicant was. commercial quantity. He has further submi.t. ted that the
.

·.. Indian Kanoon - [Link]

 Lal Kumari vs State Of U.P. on 11 Npvember, 2020

accus~d~applic~mt is a Nepali citizen and this is the route of th~ narcotics being brought in India by
·-the drug.,.peddlers. He has further submitted that the accused..:applicant does not satisfy two
·.~ond-itions prqvided under Section 37 NDPS Act and, in view thereof, she is not entitled to be
.. 'enl~rged on baiL Hehasprayed for dismissal of the bail application. .

5. I have c:onsidered the arguments advanced by the learned counsel for the parties.

· The two conditions under Section 37 NDPS Act are that the Court should be satisfied that the
accused-applicant do~s not appear to h~ve committed the offence, and there is no likelihood of
similar offence being committed by the accused-applicant in future. It appears that there has been
·violation of the Circular dated 13.06.1989 (supra) sinc;e sample was talqm only from one packet oµt
of seven packets allegedly recovered from the possession of the accused-applicant, containing 2.a

;!iiii;t[~ti~;iS,~~~;:;il~!~·~;~,;i!ti\;1;~;:tti~l; .·
.~, ,, . 9 ~.~, µ_, .. Ji. .. . . . .... 1,e. apg, ...~ij , e a [Link]! .,Jlijia~.JJ'.fJ:Weii,
:~~¥ri.;~il1·•$i.h6:!ik~JH1~'§~:~1similar offen~~J)eing.·coiiimltt~dby••th~;i~SQftd;iiti~tfoi!~l::;~~~11~~1?:g
'ffi~~J:1,~peqf;$,•J':f1nd;1~JP:i:P.e'a·.fit,·case forgr~nt,of bait,,

6. Let applicant,-Lal Kumari, accused of above-mentioned FIR/crime number, be released on bail on

her furnishing a personal bond of rupees two lakhs a~d two reliable sureties, each of the like
·amount, with the foUow:in•g conditions, which are imposed in the interest of justice:-
~ . •' .
(i) the app}icantshall file an undertaking to the effect that he shall not seek any adjournment on the
dates. fixed for evidence when the witnesses are present in Court. In case of default of this com;Ution,
it shaH be open for thetrial court to treat it as abuse of liberty of bail and pass or<:lers in ac~ord8;n<;le
. with law;· . . , . .

•· (ii). the applicant shall remain present before the trial court on each date fixed, either personally or
· . through her counseL Incase of her absence, without sufficient cause, the trial court may proceed
against her under Section 229-A of the Indian Penal Code;
. , ..
. (iii). in c~.se, the applfoant misuses the liberty of bail and in order to secure her presence
proclamation under [Link] 82 Cr.P.C. is issued and the applicant fails to appear before the Court on
.· the date fixed in such proclamation, then, the trial court shall initiate proceedings against her in.
·.•··[Link] law, under Section 174-A of the Indian Penal Code; and

..•·. (iv). the appUcantshall remain present, in person, ~efore the triai court on trie dates fbpe9 for (i)
· opening ofthe case,' (ii) framing of charge and (iii) recording of statement under Se()tion 313 Cr,P.C.,
in
·If the opinion of the [Link] court defa11lt of this condition is deliberate or without sufficient cause,
. then it shall be .open for the trial court to treat such default as abuse of liberty of her bail and
' · .·proce~d against her in accordance with law. . · ·

7. the party may file self attested computer generated copy of this order downloaded from th<\!
...official website of High Court Allahabad. The concerned Court/Authority/Official shall verify the

.. <h1dlan Kanoon• [Link] 2

 . Lal Kumari vs State Of U.P. on 11 November, 2020
. .

· .authenticity of sm::h .computerized copy of the or~er from the official website of High Court
.¢\Jlahabad and shaU make a declaration of such verification in writin~.

Order Date:- 11.11.2020 MVS/-

. . . :

_lndian_Kanoon, http:l/[Link]/doc/3142224/
 9<,9 Online WebE<;!ilion, Cof)yright © 2041
PEige 1 · WEildi'lesday, August 2~. 2921
Printed For: Adarsh K1,1mar, [)elhi L)nlversity Law Sc;hool
sec Online W:eb Edition: [Link]

Crimin~I Application (Bail) No. 266 of 2019

Ibe Chuke Ebony v. State c;,f G9a

·: '

2019 sec Online Bom 4SS5

.... In the High Co1,1rt of Bombay at <;;Q11,t
(6EFORE PRITHVIRAJ K. CHAVAN, J.) I
Ibe Chuke El;>dny ., ... Applicant;
\(. .

·. State of· Goa;.· as :Rep. by Officer-In-Charge anq A\nother .....

Responc,fents.
· ·Criminal Application (Bail) No. 2€56 of 201~
Decided on November 28, 2019, [Reserved On:- :n st Nqvember 201!;)]
'Advocates who appeared in this case :
Mr. J.P .. D.'Souza and Ms. C. Collasso, Advocates for the Applicant .
. . Mr. P. Faldessai/Additiohal Public Prose.i:utor for the Respohdents.
The Order of the (:burt was delivered by . . . '
. PRITMVIRAJ ·K. CHAVAN, J.:- The applicant who is a Nigerian nc1tional seek;; Ms
relec;[Link] Ori bail who has been arrested by the respondent no. 1 on 21.9.20:t,9 fr9m
,Candolim for having found in possession of 83 grams of coci;line .
. . _2. · FIR bearing .No: 99/2.019 under Section 21(b) of the NOPS Act came to be
registered against the applicant.
· · 3. Srief facts ;.:ire as under:-
The applicant was caught red handed by the• respondent no. 1 with suspected
cqcaine weighing.. about 83 grams in a polythene packet. Said contraband has been
attached .. under .search and seizure panchanama. The applicant is 4nder
inter199ation b'y' the police to find out the source .of the dn,ig. It is the contention 9f
Mr. ,. !;;>'Souza ·that the applicant is residing at flat No. 0-2, Alcon Const(G) Pvt.
Lt<;!. Aldeia, · Below Hotel, Khobravaddo, Calangu~e, Bi;!rdez Goa. The own~r of the
said flat has furni_shed form "C" intimating the FRRO abou.t the residence. of the
· ?1pplicar1t in the said flat. , ·
4. if is further: submitted that though the applicant was 'earlier arrested by the
. 9fficer of CalangUte:poUce Station. on 24.12.2017 in FIR No. 110/2007 for possession,
Qf 7 .5 gms of cocaine; matter is pending before Special Court, Mapusa. It is contended
that the [Link] not been convicted under any law including that of NDPS. Act.
· The applicant has .been attending the hearing of the: case regularly for the last 8 years
and staying in Iridi;;i .due to the said trial. It is fur~her submitted by Mr. J. D'Soµza,
that the applicant .lives with a Russian lady who pays for his day to ·day expenses at
the rate of Rs. 300/~ dollars per month. They have two children. [Link] informed to
the Court pursua_nt to a query and therefore, it find no mention in the application.
· S. Mr. J. D'Souza, further submits that the applicant has been refused bail by the
tria.1 Court only on the ground that he is a foreign n~tlonal. The investigatlc,n is still in
· progress. It _is submitted that what has been !found with .the applicant Is an
.intermediate Of a v~rlable quant_lty and, therefore,! bar under Section 37 of the Act
would not apply to resist the application.
·e. dn thje other h~nd, Mr. P.. Faldessai, learned Aqdltional Public Prosecutor objecteo
th.e release of 'the applicant on bail on the ground that applicant [Link] not possess a
valid travel' docu_rrien.t. · · ·
 S-_-_ - c,- _
--.-_ - C----_- ® . . sec;; Qriline 1/[Link] ~d)tion, c;9pyri11ht © 2021
Page 2 - · Wedri·esday, August 25, 2021
Printed For; Ad~rsh Kumar, Delhi University Law School
[Link] __ -_ SOC Or:,line-VV<:!P Edition: [Link]
·~, :/ll8tl (/1(11(/'Q wgat -,_r. ·.....;;.----"-'--"~--~----.----------- -
- '

7. He c;lrew\,.,y'.:[Link] to the judgment of the Pivisiqn Bench ofthis <:;01,.1rt in $'1,.10

Motu Writ Petition No. 1 of 2019 wherein it has be~n observed in p;:m;:igraph 16 that a
rric;jority oJ the <;ases concerned Nigerian nationals followed perhaps by Tanzanii:;in and
Russian nationals. Learned Additional Public Pros¢c:1,1tor drew my attention to the
observi;ition made in: paragraphs 23 of the judgment:.
s. It Is true to some extent that some of the foreign nationals, in order to extend
their s\f;ly in India,. without proper travel documents or l:>eyond the period permittf;!c;I by
the visa granted: to_ them, indulge in petty offenc:$s only, so that they may not be
deported frc;>m Iridi~L It is true that at the time of grjrnting ball to foreign nationals; oqe
-of the conditions ·wh_1¢h Is normally Imposed Is that foreign national shall not leave the
country till the trial Is c;onc:luded. Some of the foreign nationals might be tciklng yndue
adyahtage of thls · f?Jc:;:t. In that regard the Division! 6ench in the aforesaid SI.Jo_ Mot1,1
Writ Petitionr:nadf;! f9H9wing observations in paragra,phs 26 to 49 which read thps:-
26. AC<;or<;linp t9 us, in such cases, the $tqte/Prosecvtlcm <;an als9 make
applic~tiqns before the Magistrate/Courts where such matters are pendin9 to
expeqite th¢ mqtters by clearly pointing 01.1t tfye c;ir<;umstances qf ·ow;!rstay · anc;I
cJppreh(Jnsion. that· the involvement in :petty off~nc;es is perhaps tc;, fa<;ilitat(f# s1,u;h
overstcJy, The JV!agistrate/Courts before whom sµch cases are penc;ling sho4/f/, as
(jf:)s_erved in <;:hristian Chidieere Chukwu (svpra) m4st enc/(?avow tQ dispose qff.s_vch
cases expeqitious_ly otherwise it would amovnt tq f?cilitcJting svct, fqreign nc1ti9ncJIS
·t9 stay in India even though they mc1y not haw~ prqper travel cfocvments or their
viscJ period may have already expired In short, •this w91,1/d virtval!V faciliti:1te svch
f9reign nationals from defeating the provisions of the Foreigners Act, 1946, rvtes _
anq orders made thereunder. No doubt, this cannot be the, appro 9 r:;h when th~
foreign nationals are found to be involved in sefiious offences St:!Y 1..m<;ler N.Q.P. s.
Act, cyf:)er frcJL/d, rape etc. We make it clear that this list is by no means exht:!µstive.
$1.g:h inattei-s will have to be considered on a cas~ to case basis.
27.. Althopgh, it may neither be possible nO:r advisable ~o issL,Je c!nY spe<;ifi,:;
<;lirections in the aforesaid regard, some observations, are certainly fn order. Since,.
the State is its~lf _conscious that some foreign nationals) at t;fines, delil)eratety
invo_tve t.hemsetv_es. in petty offence~,. only In o der t9 facllttate their overstay .fri
1
India or otherwise defeat the provisions of' the_ Foreigners_ Act, 194p, · n,1/es anc/
orders made thereunder, we can only say that the State/Prosecution, in s1.1ch ccJses,
. -mvst e,ither se,ek expedition of such matters by filing appropriate appliq1tir;m f:)efqre .
the Magistrate orCouFts where such matters are :pendin9 or even consi(jer whether
withdrawal from the prosecution is a better option. In either cases, however, all
arrangementi must' be made to forthwith depott such foreign nationals who are
found to have nO proper travel docvments or wh~se visa term hacl alrecJ<;/y exgirec;I,
· no sooner such matters are disposed off by the Magistrate or Courts. .
28. The Magistrate and Courts must also takej cognizance of the 28 suf:)terfvf}es
employed by some foreign nationats· to secure bait and thereafter delay the matters,
on7y to facilitate their overstay or otherwise defe~t the provisions of the Forei~ners
Act, 1946, rules or orders made thereu,nder. As noted earlier, it may neither !Je
possible_ nor feasible to issue any specific directions in this regard sin<;e .these
rnatters will have to be essentially dealt with on a case to case basis. /:)y · both,
Stf/lte/Prosecution as well as the Magistrate/CouAts. All that we emp/tJasize, is that ·
.both State/Prosecµtion as we/I as the Ma_gistrate),Cqurts must be [Link] of such
Issues and accordingly take necessary steps to see that the process of the C9/,Jrt is
. not abused to defeat the provisions of the Foreigners Act, - 1946, rules and ore/ff/rs
.made thereunder; . .
- 29. Ac<;ordingty> we direct the State/ProseC:ution to specifically !)ring t;h~se
aspects to the notice of the_ Magistrate/Courts :in pending matters invqlvinfl. the

'
 .. . ···.. ' '

SCC® SGC-Onlin'i! Wet;J i;:c;lition, Copyright© 2021

. Page 3 we~i'le$[Link], AU91!\lt 25, 2021
Wrinted For: Adar~h Kumijr, Delhi University Law School
lilll•tl
1/i# SIIN,/tWlfi/Jl l,,;oi ,-,,Ji(
SCQ Online Wet) !Edition:_ hitp:/[Link]::on![Link]

f9reign natipnals who hc1v~ no valir:t travel docyments or who hal(e overst~iye(!I QY
([Link]. vi!fia term, by; if nece;;sc1ry, filing specific 9 pplications am:;J furnishinfJ all details.
We ;:Jlso direct thii;,Magistrate/Courts to take co9nizllnce of svch aspe<;ts, pc1rticvlarly
;;1t the stag~ of C<;Jnsic;Jeration of bailapp/ic:i!Jtions macie /;Jy s1.1ch foreign nati(;)nals." ·
9. It c;~n be seen from the reply of the State as !well as from the av,erm~nts in the
applic:ation that th¢ inYestigatlon is still in progress. It is fvrther appareF1t from the
. r~p1y· that. the .applicant has already s1,.1rrendered, his passport before NDPS Court
Ml;'lp1,1se and, therefore, there is no possibility ofI the applicant fleeing away· from
j1,1stlct;i, however, ·fact remains that he has not applJed to the competent [Link] for
· .. @><tension of his visa and also for extension of p1;1ssport. It transptres from trie r~cord
that w,h?lt .h;;is been foµnd In the possession of the applicant is varia):>le q1,1antlty of 83
grams of cocaine as .such, bar under Section 37 of the Act wo1,1ld n<,')t apply to resist th~
i;llpplic;:ation. · ..
• 10. Learned Counsel for the applicant has plc;1c;:ed reliance on the) following f~w
orden;; pa~sed bY this Court:-
:t:. Mr. Ishwarlat Roka v. State of Goa in Criminal Misc'. Application No. 7Q of 20Q~ ..
i. Mr. Qtto Jorge More Salazar v. State of Goa In Criminal Misc. Application !':Jo. 2:,34
· of 2005. , ; ·
3. Mr. Felix Hiewhe Okorio v. State in cri'minal Misc. Application (6ail) Nq. 227 of
. 2006. •'
4, Mr, S1,m{iay ·Kamah Onyemaechi v. State of Goa in Criminal Application (Sail) l\lo .
. ·.· 223 of 2017. . ·
5: Mr. Arvn Babu Sigatii1 v. Sate Crimin·a1 Application (~ail) No. 33 of 20:Le.'
:t.1 .. In almost all the cases herein above the apppcants were released Qn bail !;lither,
. it was a case of variable quantity of the contraband !or there was no material :;1,1fficient
~nough to deny the bail. to the applicant.
· 12. Since the applicant has fixed place of stay, ias submitted by him in the C~l,1$E! ·
title of the application which has further been fortified with the fact that he is residing
}A(ith a Russian women having two children, there would not be any dlfflq.1lty to grant
· [Link] bail by putting conditions. It is not the case of the pr<;>secutlon that in the earlier
matter pending [Link] him in the NDPS Court Mapusa bearln
I' h~d .ma e an att mpt tc,jyrr,tpJhE! bail and th
, natl· : J,b :rea'[Link]·i(
· •· tiinth . , .
. i~'ifi · · • ···.· '' .. •...
· ·"''' . L~ltr:iess~$l If the ap ic 9 nt is regularly at ending the trial
before the NDPS Court Mapusa since last 10 years, ~here is no reason for not gra,nting
. the bail in
the light of the aforesaid circumstances. Thus, for the foregoing reasons the
•... applicant c,ould be .admitted to bail on the following q:onditions, Now to the order:"".""
. . ·. . ORDER. . ' . .
i,).\pplication is aliowed. . l '

.jj. Appjjca. nt be· r. eleased on bail In crime No. 99/2019 on. execution of perso11al
.· · recognition bcmd in the sum of Rs. 1,00,000/,- (Rupees one lakh only) with ql'IE~
loccil surety in the like amount to the satisfaction of the trial Court.
· iii.. Applicant s·liaH report/attend office of ,respondent no. 1 on every Monday
. between 10.Q0 am to 1.00p.m till filing of the chargesheet. ·
, iv. Applicant shi;ill surrender his passport before the respondent no. :)., if nQt already
' submitted
, ·, .
b~fore
f·" .·
any other authority. •:
. v, Applicant . shall . not leave the jurisdiction of Special Court, Mapusa with9ut
· seekihg prior permission. •
vi. Applicant shaH. furnish his mobile number, if any, to tht= Investigating Officer.
 S<:;G Online Wet> Ed,i\ion, Copyright© 2021
P?ge 4 W$dneilday, Augu~t 25, 2021
Printec,i For: Adarsl:1 Kumar, Delhi University Law School
sec Online Wei;'> l:;dition: http:[Link]!ine.c;om

v11, Applicant shall not either directly or im;:lirectly infh,1em;;e any of the pr9sei;;uti9n
.• .. witnesses., .. ·.·.· . . .
viH. -Sail before the.. Special <;:ourt at Mapusa.
13- Applic;:ation stands dispose<;i off.
14. All concerned_ to act on the basis of duly authenticated c;:opy of this order.

. DISClalmer: WhJle every effqrt ls made to avoid any rn1s~ar(e or omission, this casenote~ headnote/ Judgment/ act/ rul~/ regulatl~n/ clrcul~r/
no~l(!catlon_ Is be,lni;,1 c!rculated_o_51 the condition and understanding that the pubtlsher would not be liable In any manner by r~ason of any mistake
. or o_mlsslon or for any action takeri or omitted to be taken or advice rendered or accepted on the basis or this casenote/ headnote/ J!.ldgm~nt/ ac~/
. r1,.1le/ regUl~tlon_l circular/ r:;otlflc:atlon. ·All disputes will be subject_exc!uslvety to Jurisdiction of courts, trlb~nats and for~ms at Luckn9w only, The
·~tJtrrerHlclty ot t~ls tel<t must be Verified from the original source .

..

,.
 $~29
* IN TH:E HIGH COURT OF :DELHI AT NEW DELHI ·
+ I3AIL APPLN. 3181/2019
. CHIZQBA CLEMENT ..... Petitioner
Through: Mr. Mukesh Bhardwaj and Ms.
Meenu Prasad, Advocates.

. . Versus
STATE (NCT OF DELHI) ..... Respondent
Through: t0"r. Rahul Mehra, Standing• Counsel
with Mr. Chaitanya Gosain ~n(j Mr.
Amanpreet Singh, .Advs. along with
SI Krishan Pal, P .S. Maidari. Garhi.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
ORDER
% 24.12.2019

· 1. · · The present bail application has been filed seeking regular bail in FIR
· 194/2019,.registered under Section 14 of the Foreigners Act, 1946 at P.S.
..
f

.Maidan Garhi. . .
. . '

· 2. . Learned counsel .for the petitioner submits that the· petition~t was ·
arrested oii 25.07.2019 and since then he is in custody. He fi,J,rther S1Jl?mits
that the petitioner, a Nigerian, had visited India on a valid passpqrt and
:medical visa in the year 201 l. his submitted that the petitioner, befc,>re his.
arrest, . had applied for extension of the visa vide application ID. No.
0309l9S5T75A which is pending consideration before the FRRQ, l)elhi. It
.. ·• is [Link] that the petitioner'. s passport bearing no. A 1073 5023 was
· renewed on'[Link] and is valid uptd 19.08.2024, ,
•3. Learned counsel for the petitioner further submits that 'he has '
instructiqns to state that the petitioner is willing and desirous to go b}Gk to
his hom.e country in case the authorities so pennit and is also willing to be

..
 deported;··
4. Learned Standing Counsel for the State, on the other hand, hi;ts
. oppo,se.d the grant of bail and ·submits that the petitioner has overstay~d
despite, having no visa. He further submits, on instructions, that the
application for visa is pending with FRR.O office·. It is further inforin~d that.
· , ' . . . . . -. : ! ,, , f ... l • I ' ••
1
•

· the charge~sheet has been filed and the 1natter is Hstecl before th(; concerned·
trial c;ourt on 16.01.2020.
5. Learned counsel for the petitioner, on instructions,. further sul,mits
. .

that the petitioner will deposit his passport with the trial covrt and· shall
i .

. · provide· a [Link] surety in case he is admitted tQ hail .

. 6; . · · ·. In view of the facts and circumstances of this case, the petitioner is
· admitted to bail till the next date of h!earing on his furnishing a personal
.· bond in. the sum of Rs.50,000/- with oi\e local surety \lf th!,'likt a~oyntto
the satisfaction of the trial court/concerned courVduty M.M. and suhJec.t to
··following further conditions :- ·
1) The petitioner shall appearin person before the trial c<;>urt:
. , on 16.01.2020. .
. .· . .. I
· Z) The pet1tt0ner shall appear before the I.Q./SHO of P.S.
_Maidan Garhi at 10 am on every alternate day.
C '

3) The petitioner shall provide his mobile telephone number

•.•.• , , I ' ., •
' . .
. -to the I.0./SHO of P.S. Maidan Garhi, which he undertakes
to keep operational at all times and in the event of change of
· his residential address/mobile telephone number, shall
· infonn the same to the I.0./SHO., P.S. Maidan Garhi.
. 4) The petitioner shall depo~it his passport with the trial
· court/concerned court/duty MlM.
 · 5.) The p~titioner shall take stypS to get his visa extende.d
· and shall fulfil the formalities as per reqt,1irement of FRRQ, I
• • I , ' ' ' ' ; , ,' '

. Delhi.
6) The petitioner shall not leave the NGR/country without
the pennission of the trial court.
· .· 7) The petitioner will not directly or indirectly make any
· inducement, threat or promises to th¢ complainant or any
·· <·witness during the trial or tamper with th~ evidence.
8) The petitioner will remain · regularly present b~fqr~ the
· Trial Court.

7. 1.,ist on 20th January, 2020.

8. Order dasti.

MANOJ KUMAR OHRI, J

DECEMBER 24, 2019
' . ga
 On board
matter
. Hl,GH COURT OF JAMMU AND KASHMIR
AT SRINAGAR

BA No.75/201.8
Date of decisiort:06.09.2018
Abgul Majeed Bhat · V. State of J&K

Coram:
Hon'ble Mr Justice Rashid AliDa~, Judge.

·Appearance:

Forthe Petitioner(s):. .Mr. Moha1nma'.1 Ayouh, Adv .

.For .the R6spoµdent(s): .~r ... Shah A~91ir,.A/£<J:>~~~~."~,.
I.& k I 1 . · , , ~t "
,, , l ... i fl
.. ,fa .
I .- i Id . 4-,l/,~f. • . I J IL ,._ · f ·, H1 I ff S,( 4. i ,}ft ?#9 - d ,- ;:, :9
i) · . Whether app:rovegfor reportihg in· r '•':t~? . ·! Yes/No
1 0

Law joumals e;fC.: ·a::,

. ii) Whether appr~~ed for public~tion · ·i
in press: · ,. · Ytls/No
/-,~

·. 1. . Learned· 1srAdditiopalSes~jo~s Jug~e,:J3araJ1:1ul1~, has declined to. gr~nt

bail in favour of the petitioner herein.'inte~~cot;g;~~rdated 29.12.2017,passed
· · in applications, three in .number ( filed by variou~ accus~d), referred in the ...
. . petition as Annexure-PA. The petitioner,· in. view of the sarri·e, has filed th~
··. ·..·instant bail appHcation wherein he has projected his case for being entitled to
. bail on the grounds, precisely, extracted below:

(A) That the continued detention of the petitioner is not legally

warranted and he deserves to be released on bail;

. (8) . That by continued detention, the petitioner is denied the right

' ' to prove· his innocence and also denying his dght to arrartge
forproperand effective defense in the case;
BA No. 75/2018 Page 1 of7

'
 (C) That the:petitioneris in langµishing in Dist\·ict Jail, 8ata11u1lla,
for last07 months;

(0) , That the petitioner is seriously ill and in this rygard a report
has beeIT submitt~d by the Medical Officer of the Jail whic;h
reveals that the person of the petitioner is suffering from heart
ailment; ·, '
. . ,. .

(E) That the case in which the petitioner has been implicated is
totally false;

(F) · That therigor of Section J'.7 [Link]~.NDJl>S Act is not applicable;

.. _,,·," . . -,;,,;'c:_~0f?<Ji[0~!1~•'.".>.,

.. (G) That one_ ofJn~ accused, na1nely, ·Niaha:~iira;q Ashraf Yatoo,

,has beenr~ieased by this ~6urt, t~erefore, petitt\ner
• ~- ?{
is entitled
.:• ,,•_ -. ·;•,j'

to same treatment. ,f
V
;s.;··
. . ·';,__- . , . ,..,-.~,., . '- :--:·;( . ' '

2. Inthe reply/objedtiqps filed,01t·[Link]~fihy,respondent,prayer has bet;,n

.. made for dismissal of the applic~ti5ri''b)'ptltti~I·f~rth that there is credible and
·. . cogent· evidence· available regarding involvement of the petitioner in 1pe
· ·.· commissionofc~in;i:e; the petitioner is involved in heinous crime which is rarest
· .· of rare one and sfoce the petitioner is still under trial, in the event of bail in
' ,. "

·.· favour of the, petitioner, there is every· possibility that the petitioner will
• influenc~the \\lit11ess~s and that there are reasonable gtounds. fpr believing that
. . the c:[Link] theaccus~d is prima facie true.

· . 3. ·. . Heard learned counsel for the parties. Learned counsel for the petitioner
has taken reliance on various judgments including Amar Singh Ramjihhai
Barot v. State of Gujarat, ((2005) 7 SCC 550), Sanjay Chandra v. Centrq,l ·

. ·sA N.o.75/2018 Page 2 of7

J
 Bureau of Investigation (AIR 2012 SC 830) and Vinodson of Satyanarayan
l,,ohiya v. Th'e $tate of Maharashtra (l 996(l)Bom. CR 483), ~nd contended
· that the petitioner is entitled to bail. It is being emphatically contended that the
··. mischief of Section 37 of the NDPS Act being not applicable to the case, it
. WO\.lld have been in the ends of justice to admit the petitioner to bail. It is also
..· .. his pleathat
. . '
the. leatried ·1 st Additional Ses~ions Judge havingobserv~d in th~.
. . ·.. '

. . : order, in tenns ~fwhich his bail application was rejected, that the quandty
involved was intermediate and not commercial, the peti~ioner c;ould. not be
pennitted to be incarcerated in jail. The petitioner, admittedly, having been
arrested on 08.10.2017 and continues to languish in the jail Without any
1
progress in trial. Furthermore, a<$fq fa'i;g}d~himl~Qne o~the p~rsons, referred in
·.··. the
.
First
'..
InforrriationJleport,
. .
has been
,...
admltt~ "'" ...
to bJU•:;py a Coordinate Bench
'·);''.," '

·.. of tbis Court in ternj~ of order pas$.e<l' on7. of April, th

2~ 18, the petitioner, on .
. Jheapplication ot\principle of ;~arity,,)s to b¥ gra~ted same treatment.
. ' .. ';<\-~\., .:~,. -:., :'.· ·:_.,~-: >: ·i:\ '. --::_<·\,-:"·_, . {if/ .
According to learned cqµnsel Jor the petitiot1~r(iiiyestigating agern;y though
. ' ..

.· having projected that the accuse&referredimtlfeFi;st Information Report were

··• arrested at the venue but the recoveries are attributed individually. Thus the
common intention or conspiracy cannot be ascribed to the petitioner so' as to
·•
1
· bracket the subshuice alleged to have been recovered from each of them a
. single,one.

.4. On the other hand, learned counsel for the respondent contended that the
learned pt Additional Sessions Judge has passed a proper order. The Court
.. cannotshut eyes,towards public interest and individual interest has to give way
to it in a case of ·present nature. It is also his contention that though the
. -: :

· ·· recoveries. hav~ been made on personal isearch of. the accused inclqding th~
. '

BA No.75/2018 Page3 oft

 I
· petitioner, the petitioner cannot be stated at this to be in possession of only 75
.grarns ofbr9Wn ·s~gar (an intermediate quantity).

·. '5~ · C· .• Learne<l'~o~nsel for the petitioner, in rebtJttal, contended that the, pleas •
· ·.raised
.
on behalfof
.
the respondent State are witho\lt any merit. A<;cording to
him, there is no ·allegation on the part of
. . investigating
.
agency that the petitioner
· · had hatched any criminal conspiracy. The petitioner deserves to be given a
·. · humane treatinent and not allowed to be incarcerated injail is also canvassed.
Reference has also been of various annexures, referred in the petition.

.<6. ·Consider~d the rival· submissions and have· gone through the record
· available before me. The Xerox,c:6p\of'thlt,\!J>ll,r2~the police produced before
the Court has also be~rf'gone tlirough. ". ·

7, Itappearsth~~ a case has byef(regi,stered by Polici Station, Baramulla,

· on 08.102017whei~in s111:11mary ~ftne'iJcidentJ,$;,quo_pJt as under:
• . -,_, :~. • -- - ; ' - '•. - >t- >i's \'- .-.-,_-,, •

. -: . '

"On 08: 10.2017,

. .' ... . '
a polia~,12gtrol ..pqrtjt,i<of
-·----
Police Station, Baramulla,
·-"··· ,, ' -.
· .

. · found some persons moving around in suspicious. drqutnsf(J,nces~. They , .·

were signal~d to stop butlhey tried to give them a slip. Howev~r, these,
. persons weri/apprehended by the policeparty and during the search of
. their person spme contraband was recovered from their possession. They
could not account for it. They disclosed their identities as (]) Reyaz
Ahmad Khan Slo Raj Mohammad rlo Kalgi Uri, (2) Mohammad Ashraf
,.
. !too S!o Ghulam Mohammad !too Rio Namblabal Pampore, (3) Abd1,.d
.···.Majeed Bha{Slo Abdul Ahad Bhat Rio Tathamulla Boniyar, (4) Abdul
Nazir Mast S/o Abdul Kareem Rio Gowhallan Uri. An FIR bearing

BANo.75/2018 Page 4of7

I.
 ·No; 18112017 was registered against themforlhe commission of ~ffenc~s
U/Ss 8121/29 NDPS Act at Police St9tion, BaramUlla, with which the
investigation .ensued. During investigation the samples ofthe _c;ontraband
seized from their possession were sent to J&K Forensic Science
Laboratory,· Srinagar, for examination and analysis. The report received
from the FSL confirmed that "DIACETYL MORPHINE (BROWN

.
SUGAR) WAS
.
DETECTED IN THE EXf!IBIT NO'S H~251/17,,
. .
TOH~ . '.

·. 254117". The statements of som.e of the witnesses conversant with the

facts ofthe.c;ase were recorded Vis 161 Cr. PC and the statements qf the
:·,

material witnesses were recorded in terms of Sec.164-A Cr. P. C. A

•• • ,,,' ,•':'t•,;;JE.t/<}/'.-',,:. :•• ~tr.~;_;-<_t.:.•a'<.~\

charge-sheet/or th~.J)Orifm,X~si,on oj.(lie'.1;offenpes U/Ss 8121129 NDPS Ac;t

.. . . .. . .. . ;::,,.¼. .. :: ' .•-~\ :.)~""} \ ;_ ,, )' ( ;: j'4',) ',,-,,,~:.'

was laid againslilhe accused persons b~Ji)re'the OQ,tnpetent court and they
have been putio trial. " .... . :\
. 1 I
~ ,
. . . '8. . Copies· of tha1 •orders ., passed· by\ the . Q,qhrt :;9l~ring trial i.e . . aft~r
. . .. . .. .. ·. . . - __ : .' ·, :: \? ,. . '. . i ··:·- ,· :' '• . .,. -._::' =-\,.:,-t~'.t/'> ~.. ,;'" -.:-· '
presentation of the challan are
. .
not available'·· attllis
::ti--''·•'
1 inoment. Xerox copies of
.

recovery memo which is marked as EXPW-2 dated 22.02.2018 on record

recites a white coloured envelope having been recovered from the person of
.. the petitioner herein. The particulars of the reccNery made from other accused,
namely, Mohamt11ad Ashraf, Abdul Nazir and Reyaz Ahmad Khan, are also
. .

. r~ferredtherein. The memo prepared after weighing the .recovered substance ·

. . . I : . l
' / ..

· ··. shows the weight of the envelope attributed to the petitiorterherein as 75 grams.

9. The learned ·pt Additional Sessions Judge, in the order dated 29.12.2017,
has referred tothejudgments of the Hon'ble Apex Court rendered in the case
of"Siddaharam Satlingapa" and ''Prasanta Kumar Sarka v. ·Ashis Chatterjt\e"

Page 5 of7 ·
 · · · and framed the qpinion that the liberty has to be weighed in the scale of
· 9ollective cry and desire and the social con,cem · has to b~ kept in vie,w .
. Resultantly admission of the accused including:petitioner herein was not fotmd
·- _· warrant~d, so the bail applications rejected.
. .. .. . . . . . .

IQ.. A Coordinate Bench of this Court has, on an appHc~[Link]~d [Link] co-

accused Mohammad Ashraf Yatoo, taken note of the fact that the contraband
· recovered from the possession of accused does not fall within the parameters
and the scales of commercial quantity but is an intermediatory one and,
th~refor~, application had to be considered l,lnder the provisions of Section 497
_·. -. ~r. P. C. It is also held that the [Link]~ ofthe P@!i!ibner therein does not fall within
- . : :- - :. . .. . . . . .·: .··, , .· ... ,,,,;,~,k;,:..,_, . , , : ,

the:
--
p\lrview
: .
ofSection.
. .
3'7 NOPS: A\ct, · · {
:.;,:: -• . ·._ ... -.
'";),,;,,_;;~,h~-
. :• 'Jf' ... ·.=... ' ,;;~:i~t '

11. As has beentightly obser~¢4 pyJtre learned I 1\ Additional Sessions ..

'Judge,
.
the quantity
. '
~ttributed
''\ .
to haveheenJecovered
: . ,, · .·,
fro!li.
c;+
the petitioner herein
does not fall [Link] ccirrunetcial slabbut is a,p,1,~te~h1~d1lite one, rigor of Secti~n
.· 37 of the NDPS Act wouldnot·be:~,ttr~yted.
/

<12.
.•
The petitioner herein appears to be· facing trial at Baramulla. One of the
. .

. accused; as referred hereinabove, has been admitted 1to bail by ·~ Coordinate

. · Bench andonthe application of principle of parity, the petitioner herein is also
· .· ·._·_•· held to be e~titleci for)eing admitted to· bail. ·It also requires to be underlined
.· - ~ ' .
.herein that nothing has been brought on record by the respondent State from
which it could be deduced that the petitioner herein is involved in any other
case other than referred herein. Furthermore, the trial has commenced after the
•. :.:_arrest.of
.. ·. . .:
the:petitioner
. ·.
herein and .the respondent State, thus, had a reasonable
·, ' ' '

. opportunity not,[Link] of substantiating its c~se before the td~l court but also to.

BA No.75/2018 Page 6 of7 · ·

 sound that no amount of bail would secure presence of the accused ar trial.
,· ·. •: Course ·of justice· c~pnot be said thus would• be thwart~d if the accused · is.
.• , ... '' . ,, ' '.. ' '. ' '. i . .

released on· [Link], ·appHcation is allowed and the 'petition~r is·

ordered to be set' free subject to the condition that he furnishes bond in \an
[Link] ofRs.1,00,000/ (rupees one lac) with two sureties of the like amount
· tQ; the sati~faction of the trial Court on the following terms and conditi<;ms:
' •.
(1) That [Link] not leave the territoria~ limits of the trial court
1
· Without prior pennission; 1

(2) · That.. ·he

.- .... ·
shall not tamper or intimidate the prosecution
·, •

'' '

.·witnesses;

(3) That 'he :Will remain pr:esent b~fore the trial11~pourt on eaqh
arid evefy date of hearing~
' ' ,\ ~ .~

.· . J 3. . A parallel personal bond be also eli9ite,~[Link] the petitioner reg~rding .

.·.· ·.· complian,ceof the conditi~ns ·incorporateg [Link]:B~ve. ·. . .

14. Pisposed ofaccordingly.

' ' '

.· ··· 15. A copy of this order shall be sent to the•trial court for informatiQn and
· further action.

(Rashid Ali I>ar)·

Judge
. Srinagar
. 06.09.2018
. <{Bhat Altaf, PS" .

BA No. 1sno1s Page 7 of7

 THE HIGH COURT OF MA,R"!YA ~IJ.~QE,S,1;1
MCBC NQ. 5708[201J
(Shakti Singh Vs. State of M.P.}
AND
MCRC Ng. 5115/2018
( BhainJ Singh Vs.
St~t~ Qf M~P} ..
'·
·. §walior,-· Dated:
',-: ., .
- .
2Q/2/2018
' ,• - ; '

· . Shri Vined Kumar Sharma,·

I
learned c;ounsel, for
.
· the ~ppllcants. ·
Shri S.S. Ohakad, learned Public ProsectJtor, for
.. the respondent/State.
•· Heard arguments.
Perused case diary and material on record .
. : These .are the first bai.1 applications fileo by the
applic:ants 'under Section 439 of ithe CrPC for grant of
bajl' i_n Crime No 427/2017 registered at Poli~e
. ,

Station Dinara of Shivpuri district against them and

. co"".accused Giriraj Malav (Dhak:ad) for the offences
punishable under Sections 8 read with 21 of the
. NDPS Act 1985 (for short "the Act").
The prosecution case is that on 29/11/2017, the
. i. appHcants and the co.,accused were found illegally
. . . ' . : .

transporting 100 (Hundred) Grams smack/heroine .in

· a vehicle bearing Registration No. RJ20 UA 5951.
· .· Learned counsel for the applicants submits that
the applicants. are in custody in the case since
'

29/11/2017 and that the charge-sheet had been

· . filed: He· submits that the minimum quantity of
srna¢k is five grams and the commercial quantity is
.. 250 grams as per the notification issued unde,r th·e · '
.· Act 'He submits that as per the FIR a total of 10'0 ·
 2

grams smack wa~ seized from the joint possession of

· the applicants and the co-accused. He submits th9t
the seized quantity is an intermeqiate q4antity on
the lower side. He submits that the applicctnts are
the permanent residents of distric;:ts Kota ;;ind Si;1ra
· of ~ajasthan state which pre the bordering gistricts
· of Shivpuri district of M. P. sta~e where th~ alleg~d
·. offence occurred. He submits that the. applic~nts
· have no criminal antecedents. He s1,.1b,mfts 'th?tt this
Court h~s granted bail to the co-accused, theref9re,
the .principle of parity is also applicable in their
· ·. cases. He submits that the applicants are ready to
· . su(?mit local solvent surety of Shivp1,Jri district. [Link] I
..
.· these submissions, he prays for grant of bail to the
. ·• applicants.
· Learned Public Pros_ecutor .has opposed the,
. ·pray~r. However, he concedes that a, per the case
··diary the applicants have no .criminal antecedents
and. that this is the first ever criminal case registered
against them under the Act.
• Taking into consideration the facts and
circumstances of th.e case, the submissions raised on
·. · . b.e:half .of the parties by their counsel, the quantity of
· seized smack .in the joint possession· 'of tlie three .
~[Link] persons as P,er the prosecution case, no
criminal antecedents of the applicants and this is the
• • • I

· first ever criminal case registered against the

 3

· appll~ants yn(;ler the Act, bvt withq1,Jt q,mmenting on

. me,rlts - '
of ' the cc;1se, I am of the gpinion thQt a case is .·.
\ '

made out for ~rant pf bail to th(;! applicant$: Henc~, ·

thi~ ai,plic~tion is allowed. Th~ cot,111; concerned is
directed to release applic;;:ants Shakti ·Singh and
Bhi!liru Singh on bail upon ec,c;;h of th~m fvrnishin~
, c)I. personc;1I bond in the s1iim 9f ~$.7$,QOO/·
(Seventy Five Thousand} with one solvent iur~ty
of Shivpuri district of the same arnovnt to its
satisfaction for securing their ptesence ,in th~ course
9ftrial of the case. The appHcaints shall abide by ~II
. .
the. condition!? enumerated in• Section 437 (3) of
[Link]. In case of bail jump, thei concerned court ~ill
have_ power to cancel the bail of the defaulting
applicant.
Certified copy as per rules.

([Link] Mahajan)
. Al<S · Ju~ge· ·
 [Link] And Anr. vs Stale Of U.P. 9n 8 Mar9h, 1999

.AllAhabad High CQurt

· .Yunis And-Arir:.vs StiateOf U.P. on 9 March, 1999
· ·. ··. [Link]~infdtatioµs; i999 CriLl 4094
A\itho1;: M [Link].l ...
. . .· l3em;h: M Singhal . : ·. .· ·
QRD:BR ~tL. Singh~l, J~

1. The two ac;c1,1sed-applicants, namely, -Xunis, son of Noora and Haroon, son of Nazir hav~ applied
for bail undei< Sections 147, 148, 149, 302, 429/120-B, I.P.~. and Section ~7 of the [Link] Act. ,

.
2.. I have. heard
.
the'Iea~ned Counsel for the accused-appli¢ants,
.,
the learned Additional Government
Advocate and Shri Ram Shiromani Shukla, learned Counsel for the complainant.

··3: Thepr0secution 'stpryas embedded in the F.I.R, is that the deceased Yal,eenuddin Qureshiand
: . .·" . . •. . . . l . , . ; ' . . . . 'i,

the c9-accused, J3hugg~l were on an inir~1ical terms, cases ;in Criminal Coµrts were pen<;ling b~tw~eil'
· · '· the parties. The co.::accused Bhuggal and others had made efforts for the arrest of the dec;ease(l
Yakeenuc;ldin Qureshi: but the High Court had put embafgo on the arrest of the dec~ased; thiis had
· been fejt by the co-accused Bhuggal and others. On 29-1-1997 one day before the qcc;urrence, the
co-accused Bhuggal _had told the informant (brother of the deceased) that he had, sav,d t:lle
·deceased from [Link]}:l Court but he. would not be able to save him from the accusecl. persons. On
SQ . . ~-1997 <it about 6.30 a.m. the deceased and the infortnant when came out of, the mosque after
· . offering prayers, the seven accused persons Bhuggal, Harc:ion, Yun is, son of Noora, Iliyas, [Link], son
· o{Noor Moha111inad and Mohammad were sighted. The f:!O-accused; Bhuggal exhorted and all the
[Link] acc1,1sed persons armed with revolvers indiscriminately fired on the deceased, re,1?ulting in
tnjuries, to him. :Dece~s,e.d was taken to hospital, on 1way h~ succumbed to the injuries. The [Link]. was·
lodged:immediateiy after the occurrence at 7.50 [Link]. atPqlice Station Kotwali, DistrictMathura.

4. Out of the seven ~ccused persons arrayed in the case, co-accused Mohammad QtJreshi by the
learned Sessions Judge, co-accused Quayum by Hon'ble Mr, Justice T. P. Garg by order dated ~2-1
:.1998 and the. co-accused
.. .
Yun is, son of Noor. Mohammadl! by this Court on 3rd February, 1998 hav~
· been enlarged on bait Against the order dated 12th Jantjary, 1998 releasing the accused Quayum,
the State went in S.L.P._ before the Supreme Court, but ~ubsequently the State did not press the
petition on the plea that the State intends to move for cancellation of the bail. On the other hand, the
· bail fo the co-accused lliyas has been disallowed twice by! Hon'ble Mr, Justice J.C. Mishra firstly by
order dated 18th. September, 1997, secondly by order dated 29th May, 1998. The [Link] of the
• learned Counsel-forthe accused-applicants is that oq th¢ ground of parity, the accused-applicants
• • • • • ' • ! . J . . . .!.• ..· '
· are entitled to bail as three other co-accused have alreadyibeen released on bail earlier. Onthe other
. ' hand the argument ofJhe learned Counsel for the complainant', is that, since the oailapplfcatiQ0 of
· the [Link] Iliyashas been rejected by another Bench of this Court; not ~nly orice but twice, th,e
· · accused~applicants are not entitled to bail. The learned :counsel relied upon the dec;isions, of this
.Court in Smt. Sita Pati v. State (1996) 20 All Cri R 35; Sat:yendra Singh v. State of U.P. (199Q) ~O All
Cri R 867: 1997 AIHC 1051; and a Division Bench ~f this ~ourt in Chander alias Chandr1:1 v. Stl:lt~ 9f
.U,P,(1998) 22All CriR356:1998 All Ll 870. '

Indian Kanoon • [Link]

 Vunis And Anr. vs Slate Of U.P. on 9 March, 11:199

~· In $mt. Sita P1,1ti v. State (supra), this Court has held t~at the facts of each case differ and even a
se(!mingly insignificant fact may change the entire complexicm of the case. If bail is granted or
n:fus~d in one case itd9es not have the effect oflaying down in law and as such a bail order cannQt
1,e cited as prec;~de'nt. :Sail cannot be allowed or refused oi;i the ground that bail has been granted or .
. refused in. ~ similar cl;[Link], but different case because eaeh <;ase has its own peculiaritif;)s and th~-.
.question of parity. does not arise at all. In Satyendra Singh v. State of U.P. (supra), this Cqurtfais
f\ttther held that r~le of parity is not applicable in all cases, on~ Jµclge may be impress,d. by a.
pi:trticµlar pqfnt not. considering sufficient in law for gnfnting bail. Another Jud~e ,is free tq take.
different view and maYrefuse bail by giving his own reasons. Bail is granted on totality of facts and
. circllmstances. In that case before the Court, two accus~<;l had been granted bail l;,y Qne Hon'bl~.
· siqgle Judge, but_D;oreasons were disclosed. The Court held that the applicant was not ~ntitleo. t<:>
bai} on ground of parity. In Chander alias Chandra v. State of U.P., 1998 All L.J 870 (s1..1pra), a
·])ivision :Sen ch of this Court, inter alia held that:

(t}If the ordergfanting bail to an accused is not supported by reasons, the same cannot form th~
· .qasis for granting
.
bail_ to
-' .
a co-accused on the ground of parity.
',,,,

. (2) [Link]· i&rtot htmnd to grant bail to ah accused on the ground of parity even wh~re the order',
·. ' granting pail to'an id~ntically placed coaccused contains tea1,on~, if the same has be¢n pc:1ssed in
Jlagiant-~iolatiortof"well-settled principles and ignore~ to take into consideratiort the relevant
factors essential for granting bail.

. (3) A Judge hearing bail application of one accused cannot cancel the bail granted to a co-aCC\lS~d by
[Link] on the ground that the same had been granted in flagrant violation of well-settled
.. principles. If he considers it necessary in the interest of jtistice, he may, after expressing his views,
· refer the matter to Judge who had granted bail, for appro*iate orders. ·

. (4) If it appears that a bail order has been passed in" favour of an accused on the basis of wrong or
incorrect
, ...
'• .
docµments,
. . ·-. ...
i.t is open to any ,Judge to initiate action' for cancellation. of bail.
-

l , . . .
6'. In the present case;'.the order grahting bail to the accused Quayu'm, is not withC>ut r~asort·s, the
order passed by ~on 'ble Mr. Justice T. P. Garg shows that the several respects of thE;i case have be~n
taken into considerati~rtby the Hon'ble Judge while enlarging the co-accused Quayum on baiL The
said order cannot be said to be in flagrant violation of the well-settled principles and relevant factors
. essentially for granting bail. As indicated above, against the said order the State went in Special
Appeal before the Hon'ble Supreme Court and it at later stage withdrew the special appl')al. On the
•. basis of the said order,the co-accused Yunis has been en~arged on baHby this very [Link] earlier in
.. · Nanha v. State of.U.P., 1993 CriLJ 938, a Division Bench of this Court earlier has:ll~vilflflil1
.•~-f\~'a,~~'iq,:P-at!CU~esl!f~tfa~ntfo~[Link]:f'.in~laff~tflfilc61~'ccu!~~"'''i;~e~li~gf(lf~ill!'liilf~fllt]i'
. i!i~~i1t!+~~~i~;4o/S~i~ijjed1s-entitled.;to,1>¢,r~le~sed6rj"b~tl. on,•·.~ecoµ~j:q~~~l,
i~(i'1lq~i.t¼tA's'tegafldsih~ [Link];o-f pafi ty; in th&ttelof r.ejecti601bfl~'if1appl 'aY'ffi~
iai~i~:ii~ijt:Ji~1~i~~~lt~,4~/~-<l~$[Link]~.t~l¢i;In matter dfrele~se b~·b;il
to.. th~ co.. accused m~ybe
applied where the case of the co.:accused is identically similar, but cannot be applied for reje(!tihg
the bail application of co-accused. A co-accused cannot be denied bail, merely on the ground that

·Indian Kanoon-[Link] 2
 YLJnit;; And Anr. VS State Of U.P. on 8 M~rch, 1999 ·

[Link] ofanotheracc1,1sed has been rejected by the Co,t:1rt earlier, tlie obvio1,1s reason being that
✓ while the earlier·ba'U order denying bail W another co-accused was passed, the latter co-accµsed
applyinl fox a
bail, was n"pt heard. In Nanha v. State of U.P. (supra) (Para 60), Division a~nch of this
Court observed tha~: ·' ·
. ' . . .

The prior [Link] the bail application of one of the accused cannot preclude the <;01,1rt from
granting bailto. another accused whose case has not been considered at thE,l earlier occasion. The
accused who comes up with the prayer for bail and who had no opportµnity of l?eing hE1ard or-
pl?tcing nlaterial before the Cou1•t at the time when the bail of another accusf.,)d was heard and
· rejected, cannotbe prejudiced in any other manner by such rejection.

. 7. Thus the law pf parity may be applied in granting bail to a co-,[Link], but cannot beinvoked in
.rejecting the,ha:U application of another co-accused. The l~arned. C9unsel. for the complainant relied
. :(1pon the [Link] of~ the Supreme Court in State v. Jaspal Singh, reported i'.n 1984 sec (Cri) 441 :
1984 Cri L.J t'211. Tht=dac't:s of that case were entireli different, in that case the grant of bail to the
· a<;cuse<:l was held not justified in the larger interest of th';! State, the accused being guilty of offending
the prQvisions of Official Secrets Act, 1923 .

. 8. Let the accused..,applicants Yunis and Haroon, involved in Case Crime; No. 41 of 1997, under
S.~ctions 147,148, l49, 302, 429/12o~B, I.P.C. and S~ction 27 of the·Arms Act, P. S. Kotwali, District
Mathura be enlarged o·n bail on their furnishing a personal bond and two sureties each in the like
·· amount t:0, the satisfactiqn of the Chief Judicial Magistrate:concerned.

' .

lhdlah KanoO,n '. http:l/[Link]/doc/1691277/

I
 1
\

. ; '\ ·• .•.

' ..DATED
'
THIS THE 15TH DAY OF DEGEM6~il.20~0.
... ·., · .. '
·. , _ ,

BEFORl::

THEfiON'BLE MR. JUSTICE

" ' . ·' HARlSHl(UMAR
SREENIVAS
. ,-· -. . ·, ;. '

. CRIMINAL PETITION No, 7274 OF4.202,0

4 '. . . ;
- 4 . . t ; ~-, ¥ , ,.-~ _. , t . a , . K I 1~

B,EtWEEN

Ezeofoma Elochukwu @ Frari'k

S/o. ·Phillip Ezeofoma Efothukwu
Aged about 3o·yec1rs,
R/afC/o. Bramh:aiah, ' ·. . '· ·. .
Site N9.
9G\ 21~0 C:ross, Byrapp::;i_ ,La'jout,
[Link]~He, B~n9ah,.1ru- S6Q049 .
Native
.
ofNig~ria
... '.
. ..
... Petitioner
(BySrf K;[Link],·- Advocate)
' , '

-·
AND

Stile 9(:karnataka
eyappanal'.lifHi Police Station,
·Bengaturu.-_'5~0049 ·
. Repr~S'E:)~tea PY State Public Prosecutor, '
High Cp!.Jr~·-Pf Karnataka
·se11galuru,.560001.
· ... Respondent
:{By Sri',' [Link], HCGP)

..This Criminal Petition is filed undtr Section 439

Cr.P.C praying · to enlarge · the :petitioner on · bail in
· [Link].117 /2020 of Byappanahalli Police Static,m,
Bengalutu, for the offence punishable under Sections 21(c)
of NDPS Act and Section 14 of Foreigners Act and Section
. · 5 of Foreigners Registration Act. ·
 ,
@
'
.

' This Criminal Petition coming on for ord"e(s:.t'f~is cily,,.. ',

the c;:ourt made the f<;>llowing: '

ORDER
I
. [Link] is a petition under 5ectic;>'r1. 4·39 <q(:·¢r;P.G~ the·~/
. . ·•- .. ,: .

petitioner
·.
is accused No.2 in.C:r:
.
...N·o.. i17/2Q70
--. ',,
•'.. ... ........ -
/iegi$ter~c;l
•,.

,·. · by ·the respondent polic~ for·th~

. ·.
ofter;·ce~· pynis,haQle
:· . ·•. '•
unoer
.
. . . .

sectic;>h . 2'1( c) · of Narcotic · -.DrJg$

. ,,
.··~ntr Psyc;hotropi(:

$[Link]~ Act,
'
'
sec;tiori
. ..
5 of Reg1strr~tion
·.
of Foreigners Act
"~

2, Heard bot,, sides.

3;. The prosecution case is that on· 30.9.2020, the

Pq(fte ·s:l:lb-lnspector Girl Kumar r~ceived an in'[Link]

.thatthr:~·e. Afri·cans were selling narcotic substances. He .
·. 1·

pass·ed.· ' -on this information to Police Inspector Sri

i ·V2nkat~chalapathi. Thereafter, the said Police Inspector

. brough_t this matter to the notice of Assistant

Commissioner of Police in writing and since the said

Assistant Commissioner of Police was otherwise engaged,

 personnel t<:> go to the spot afilcj seiz,e_ 'tJ,J~-:-M<;i_rtq~ic ... · .

. .··. swbstan~es.
.. . .
Accordingly, at abo'.ut" i2..-1s~ PM·~
\ . ·••.. ,' . ·•. '
,the_i:afdi~~: ..
; - . . . ·•;~,-.,
\t

foreigners and suspecting their: rnoVP-merits, they all

' ',,, '

.searched, .it WO':F found that th~V l'lla~ not got renewal qf
·- ; . - . . .

tH~ir pass;ports. They· s~id ti,1at, they had_ cqm~ to that.

place /for· se!11r,g cocaini:: a_n:d · MDM~. The polic;'e s~cure<;I

the prese11ce of As,sistarit Commissioner of Police nam~ly

. . .
[Link], Ulsoor Sub··Division and then cqnducted personal

se.~rth\ _From the possession of the: petitioner 51 grams of

.
cocci:ine._wns
. .. . rn,:overed, 52 grams from accused No.1 and
'
·, ·-

' · .. :tq Qr~ms from accused No.3.

4. The total quantity seized from the petitioner is 51

grams of cocaine which _is more than small quantity and

· 1ess than commercial quantity. Though the learned

counsel for the petitioner argues vehemently that there is

 4

Act, . rt'. may be stated that tnese ~r~ th~ ~~Pfl:Cts ' •·,,.,,,,_ ',, '·,
.tQ ._ bi
. ,.,

indicates
. . . that the Police Sub-Inspector
: ' ..
t;1ft?f
-·.' .. ~''
'
l"eceJvfrig'
,_ ':. · ·-'

· .· informc3tion
..
brought it to the· hotir:;e·,. of his ~µperior
·~ officer,
i:e,; tbe Police Insp'ecto.r, who n,Jyrn a~tho'rl~ed him tQ

condud the raid .. This authcriz.atiq_n fails 'y,1ithin the ?~9P~ -

of s_ection 41(2) of the · NDPS Act. However, the, fact

. .

remains· that the tot1;I quc:11tity selie:d from tne petitiQner is ·

only si grams ar.d it appears that the p~titiqner h?ts nq

. crimina'! antecedents .. Thl'.::!refore, lenient view may

. ' . '
li)~. . '
' . . . ' I. '

take11for the first tnne to enlarge· him 'on bail. Hen¢e, I

p~ss. ttl~ .following order : -

'· ~

· (:a)' Petition is allowed.

(b) Petitioner shall be releas:ed on bail on obtaining -

from him a bond for Rs.2,00,000/- and two

sureties for the likesum to the satisfaction of

the trial court. He is also subjected to the

following conditions : -

..
 5

(i)

(ii) He shall ne>t {t<:1mper-;Witn:: the.··evidinc~,

;·, . ' ,, .. ·-'-. : ·. , ',.' ~-., /, \. --.. '>,:· . . ,,,
·, •~.
and threaten the witness(!s.:··, · ·.. ·
: • ' '•, • '•,' • .:.,''' 'A._'•,, :,
·~,.

(iii) The pas$pO'rt

..
. anp. '
Vf~a With
~
the
I
investigatin_g· .[Link] shali":rem~in Vt1ith

the lr-westi~~tir,g [Link]·f-~r tiU c;onclvsion

... of trial. ·
. ' . !. . . I
He shall inar;I( his att<;ndance in th~

res~or.,denf'pqlice station every week,

preferably on a Sunday between 9.00

Arv( and 12.00 noon till conclusiqn of

\
trial.

If he gets involved in . any' criminal ·

· case 'in future, bail will be c·ancelled; · ,'

Sd/·
JUDGE
 t;r. MP (M) Ne;,. 3~ of 20~
Res~rved 9n : 2~.(),.202Q
t>ate of Decisif)n 22.99.2020 1
:

<(,9>~~~. tfr,
-[Link]!~ Chid~bem

~~~!e O',.W,[Link] Pradesh

Versus
,
>~"'
S~·:R ,; ·· ~.P~~dent;
'

Coram; · ·.. . ((~'\

_·. The hJ9n'ble Mr. Justice Anoop (}l.i~ar~,_)_g~,e .

. Whethr=r approved for reporting?/i~"J)

... ' , ..../

For the petitioner: Mr, Aks6'a; Ki:it,Dch, Aovocate .

. . Fo_r th'; respondent: ~r;---~cin:)J''ta~ Thakur, ·Additionai Advocate.

,····-✓, 1\~:nir~f:
.... /
· · .1 • .:.. _ • ,.

' _.. :... (c·-, / ,· . .

\'~r;·Krjun Lal, Advocate ·as Amicus Curiae.
'
· .

COUR'r PBQCEEQ:1~:~Jc:;QNVENED THROUGH VIDEO CONFERENCE .

Anoo
.
·~~~~
' /
u e.

· . ( { ~ ' -trial prisoner, holder of Nigeirian Passport, has come [Link]

<""'~(~::_:~)sJ Court under Section 439 · of the Code of Criminal
( ,))~ure:1973 (CrPC), seeking ?ail, u111der Sections 21 & 29 of
... (. I\Jarcotics Drugs and Psychotropic Substarkes Act, 1985 (NDPS Act),
<)Sedi.61112 of Passport Act, 1967, Section 14 of Foreigners 'Act 1946,.
Sections 420,
. '
468,. 471 IPC, for selling 13.95 grams of heroin
~

· (Diacetylmorphine).
2. The police arrested the petitioner, in !FIR No. US of 2019, date<;!
. 2.09.2019, · registered under Sec,tions 21 & 29 of the NDPS Act,
Section 12 of Passport Act, 1967, Section 14 of Foreigners Act 1946,
Sections 420, 468, 471 IPC,in Police Sbation, Dharampur, District

Wh~[Link] reportel's of Local Papers rnay be allowed to see the judgment?

:;: Qowniq~d!lq' on • 26/QB/202113:211:91

.
:::~/$
:
·.
,· ..
 Solan., Hirnachal Pradesh, disclosing cQgnizablJ · and non-1;:>ail~ble, ,
off~nses ..

. l ~a. rHer., th. e petition. er h. ad filed a petit.:ion under. Se. c;tio. ta~~PC.
· · before , the Special Jwdge-11, Solan. However, vide orde · tsl~te~
◊
. 2.. n.
7. 9·1.. ·9., Learned Special Judge, Solan, D.• istric;:t S~lan,,R, 9i~ sed .
· the petition. 1/'0 .
·. 4. .. i b~V~ read the status report'(s} and hear{fo~nsel ~the part;ies.
,.:~·:,.
, FA(:TS:
·: ., , . .I/ / .,,"·'""
_, ' v
.... - . . . ' ' i\ \ )-) .· '.' '. . •
.s .. -·- Ekiefly; the allegations against('~ petitfo.?er are. th.~t the ·poll~~-
had G1rrested one Naresh Kumar fop-~~~ing 13.95 grams of heroin
~Diac~tyl~orphine}. After hi(, ~rt~t, -when the police - condyct~d, .
invest1gat1on, he [Link] ~. th~ P,b1fce that he. had pl,Jrchased this
. . . -, •-,, 1,/ :
I subst?ince_ from two per,son),~w)'roJbelong to Nigeria namely Innocent
Oluch~kwo and Stepp eh (11t1:i1b~m. After that the police has arrlFste~
// ;,''"'"./ \" , ..., //
the [Link] pet(ti~ner lo(·abetting the said offence.
. . . \ ~ ) J
" .. ·
' . ..~'"" /,,
. -.. P ., . /
RIM A H 0

n,W6~--;; I for the petitioner states ,that the acc~sed has n~

•.. 6. .

◊""/i~Y-
<:~0 '<i . NS:
for the bail petitioner submits that thEl
"<)allegations are false and concocted. He states that in the status
report, the ·investigator has admitted the Passport's genuineness,
. . '

whi_ch implies that his identity stands ascertained .

.a. _On the contrary, Mr. Nand Lal Thakur, learned Additional
Advocate General, contend that the investigating 9ffic:er hgs coll~ct~d
.. ·sufficieJt'prima facie evidence; He further submits that ltthis Co~rt 'is
' ' ' ' .
- . inclined_ tp grant bail, then such a bond niust be subject to very ·
· . stringetit,conditions.
 9. M.r. · Arjun ~al, Ld. Amicus p,.1riae submits ~hat the ~ignifi~arit
challe~9., ,qua grant of bail to foreign n~[Link] is, th~ g~e;~~n qf
sec:vrih~l their presence dyring trial in relatiQn to th~ i;JppliCi;iQility of◊
Article 2 l of th~ [Link] of India. • . ~ .

[Link] ~p ,REASQNIN§: ~◊
10. WhHe iealing with the bail applic;:ations 9f?!?r~tionals, the
· mo~t significant challenge the Co1,1rts face is t~ se,;:1,.1re tneir presence.
·cod.e qf C::riminal Procedure, 1973, (CrPC),~~s~'ified two types of
offenses, bailable and non-bailable. Secti¢11\[Link] of the :CrP<; d~fines'
b~[Link] shown as the off~~~ist~·~:·:S 'bailc1ble' in th~ First
[Link]. ~le: .•of. C. rPC or any othe·'.r la.w[.~~.:. eft•. out crimes are deem~d
to be Npn-t>ailable. In bailabl~O~QSeS, a Polic;:e officer is ynder an
obligation'to release th_;...~J;~e);dn bail,. subject to them fµrnishing
bail bonds·. It me}n; t~r(r~~;,··a foreign national Ci;lnnot be d~nied
. · bail in a bailal:{~,·offen\.e.;~::.~erefore, the question of securing their
.· presen~e:is:not~~~j~ute condition. However, in heinous and bone-
.. [Link] criq::i~s. aitwhlch certainly are nor,-bailable, the present(:'! of
,' ,, ' the ac~¥'~t be ensured by the Cburts, before, granting th~· baiL
Th. u,~.',~~ealing with bail petitions of., accused who ·are not the,
· . O~'tia~'IJ~~1'))ndia, one of the most important parameters. t? keep in
~. ~ · .. 1st.&~gravity of the offense. .

<,~· ·"("''o. • Section 2 (vii-a) of the NDPS Act defimes commercial quantity as
' '
Vthe quantity greater than the quantity specified in the schedule, and
S. 2 (xxiii-a); defines a small quantity as the quantity lesser than the
:. quantity_ specified in the schedule · of NDPS Act .. The remaininQJ
.··.·.·quantity falls in an undefined category, wlnich is now generally callel;:I
. as intermediate quantity. All Sections in the NOPS Act, which specify
. .a~ offence, also mention· the minimum and. maximum· sentence',
· [Link]·g upon the quantity of the subs~ance. When the substan<;:e
falls under commercial quantity statute mandates minimwm sentence
·. of ten years of imprisonment and a minim~m fine of INR One hundred

'
.. '

::: ~ownloac!ed on • 21WIJ/20'l113:26:Q7 · :::C/S

 tho\Js~n~. am;I t;>ait is supject to the rider$ manc;l?ite<;J in S. 37 of NOP$

NDP.S. Act •.. specifying small and q:,mmerdal .quant. it. ie o ~r~s and
psychotropic substances. The quantity of c;Jrug in Q!_~\dl's,Jess th~n
· commerciqil. quantity but greater than smat(½antify._)(>.s svch the
.· rig. or$ .of Section 37 of NDPS Act shall not he present case. ~.Re.~~.
Resultantly, the present case has to be tn(ci{e~tfe any other case ef
grantof t;>ail in a penal offence. '"' \~.. :::~/

" . · ln}IJt~rmediate quantity the f~~he provlsiqns qt ~ection ~1

[Link] not. be Justified- {Sarni Ul~·ha~,~upe.r. in. [Link] [Link] .Contro. . 1. ·
. Bureau, (2008) 16 sec 47{}."-~ Jhe present case; the quantity Qf
substance seized is lesfjh~n~h~/commercial quantity. [Link], the·
bail application ,st:.a6-0s\ph".eti,Jerent parameters and is similar to bqil
. I /' ,,....._, .• ~"'

•· petitions under~J~,~l~f~tatutes .
. · ·. • · . • .· .•. 14. AlthoUg.Q th~--::~a~imum sentence attracted in FIR exceeds
.. ·... . .··.·. . · im·[Link]~.~-~~ more t~an seven years, ~-.· et an analysis of t.h~ facts
· . . ..· makfa~~ase for bail. Reference be al~o made to the c;lec1s1ons 9f
. ·.•.. . . • .. /) ~~l~.~
. . reme ~ourt in {a) Gurbaksh !.Sing. h Sibbia a. nd oth. ers
<_.

.·. •. . : . ~ ~ a ~ ; o f PunJab, 1980 {2) sec , 565 1 {Para 30); (bl_ , K~lyan
.· <~:t'C_~rjdra .Sarkar v, Rajesh Ranjan ~ P~pp'-' Yadav, 200~ (2) SCC ·
. ·.· · ","V42; (Para_ 18): (c) State of Rajasthan, Jai;p\lr v. Balchand, Al~ 1977
SC 2447,
.
(Para 2); (d)
.
Gudikanti i Narasimhulu v. Pu~lic I
Prose.cut9;r, High Court of Andhra Pradesh, {1978) 1 sec 240,
(Para 16); (e). Dataram Singh v. State ~f Uttar Pradesh, (2018) 3
SCC 22, (Paras 1 & 6).
... 1s. Pre-trial incarceration . needs justification depending upon the
offense'? heinous nature, terms of the sentencd prescribed in the
. statute . for such a crime, probability of the accused fleeing from
· ·justice., ·hampering the investigation, ~rim!inal history of the accused;'·.
 5

and doi,ng aw7)y with the victim{s) and wi~n~sses. ThE! Court is µnc;ler
an obligation to. maintain a balance betwe1;1n all stakeholders and
' /~
safeg1,.1erd the Interests of the victim, ac;:cused, society, and ztb) ◊
1<> In, L,chhman D~ss v. Resham Ch~n<! Kole,; ~018~¢C
181,Supreme Court holds, <~v~::>. ◊,
: , "10 .... The lavy under section 439Cr.P.9'_is v'ecy<~~a-rl
and in the eye of the law every ~'c~~ed 'is,)he
· · same irrespective of their [Link].t <.. ' . ,

· 11. 1.n the present case, a perusal of eviol(,if

.· ~~ on re~qrd so f;or
· leads to [Link] inference: i~ , •. :::::.) ·

a) ··•·The petiti1;mer is a Nig~f'~~~ti,bnc;ll, holtjing a Pa~?POrt of

•, . "· ' '~..•/
Federal Rep\,Jblic of Nige:i(, o~a'J<lng Pc!$$pOrt No.A~Q251470. Th~
Stat1;; _hc:1s already ve:.i~~~~JP¥~ concern~Q Embassy abqut the
~enu.lneness_~:,-~h11ai~ort;/ . . .
bl. T~e 16r11t(t~-~~~:::~afug. involved. i~ less. than,' Co~rr-1en;ia!
. QyaritIty b4,t":g_re_st~r than Small Quantity. Aiqsuch th~ ni9rs Qf
. . Sect:ior).. 37 6f'·::Nr5PS Act shall not apply in' the present ~ase.
.. · . R. ~~ the present case has to.. : be treated like any other
· /~.-.~"oz'oi')rant of bail in a penal offence.. .
◊ ; (~'\
. ( .· «~t::::;~ petitioner is in judicial custody since 5.9.2019.
<))~ Sbe investigation is complete •~d the report under section
",0,..) 173(2) CrPC stands filed .

18. •. The quantity of substance involved in this case does not restrict
bail;' .
The_ incarceration of the accused during the, period of trial is ·
'.-, · I· ' " 1 • •

·. ;, neither warranted, nor justified, or 'going to achieve any significant .

· purpose. Any detailed discussions a~dut the evidence may preJ1.1dice
the case. of the prosecution or the accused. Suffice it to say that dµe
• • I

to the reasons mentioned above, this Court believes that further

incarceration of the accused during the tr,ial is neither warranted nor
will achieve any significant purpose.

•.
I

; ::: Oownt91Jdec/ on • 26IQW202113.126:Q1 :::C,11$

 6

19 The' possibility of the accused [Link] the course, of the

investigation, tampering with evidence, iAtimidating witnesses, arid
' .. ' ' . /"""',,

the Hkel'.hood 0~ ~eeing.' .just'.ce, can. be. ~.a ken care of by~,j'v,.~)in90
elaborative cond1t1ons and stringent cond1t1ons. , /
.·-' : ' ./.,,,..,_ ·,,,

20. . Given the above reasoning, the Court is g~antih9 ,~ai'd,o the
petitiqner, subject to strict terms and conditio~_s, \A'J~sha,V> be over
and above and irrespective of the contents o\ ~ for'mJ>f bail bonds
in chapter XXXIII of CrPC, 1973. ~

·.. .21. .

. Courtopserved,
In Shokhista v. State, 2005 Law
·
sf(-f~IJ
r"-0 ·,,. ,. / .
)1316, Delhi High
-
· ·. . -~- . 5.....The
accused is a fore!,g~la~.9ral ancl i:; not· a . ple . to
, -··
-furnish a local surety. Th~~h,~9-rs not del;>ar her fr9m
. _, being admitted to baij.0Jt:i_e"°rov1s'ion of local surety is
·• [Link] [Link]~ t~e·c;:04'e of Crim. inal Pr9c;[Link]. and
surety can be from-~•~ P'?l/j:> of the ;country or without. In
_the- present casfo!;·si~~ t~~ accl,lsed is a foreign national
and is fa. cing in{if(i!'st.~afici'r1 unqer [Link] 4, 5 ang 8. of the.
I. T. P. AtC?nd. l'l<l v1E}W of the fact: that the Petitioner is
ready arycf.
willif,\9'•to-'make a deposit in cash in lie1,1 of th~
surety \it1\addi\iqn to a personal bond, I am of the opinion
that th~ ~hds'5>f justice would be m~t in permitting her to
' d~- ~o. Conset1uently, I admit the Petitioner to bail on her
~hing a personal bond in the sum of Rs. 20,000/· and
, asb',oeposit of the like amount In
lieu of the surety to
at'lsfaction of the Trial Court. The Petitioner shall not
, . (c· the country ~ithout prior P!!r':'isslon .o.f the trial
◊~ ~: rt and shall deposit her pass-port with the trial <;ourt.

0
~~ . g the decision of this Court i~ Abhishek Kumar Singh
"'-,1~tate of HP, [Link]{M) No. 1017 of 2020, the petitioner shall b~
"Vreleased..on· bail in the FIR mentioned above, subject to his furni~hing
a personal bond of Rs. One hundred [Link] only (Rs. One Lac) (INR
100,000/-·), and shall either furnish two sureties of a similar amount to
the satisfaction of the Chief Judicial Magis~rate/llaqua Magistrate/Outy
Magistrate/the Court exercising jurisdiction over the concerned Police
Station where FIR is registered, or the aforesaid personal bond and
·,' fixed 'deposit(s} for Rs. One hundred' thousiand only (Rs. One' Lac) '(INR
100,000/·): made in favour of Chief Judicial MagistrlOate, Solah,
District Solan, H.P., from any of the banks where the stake :of the :·

::: l)own/oaded qn • 2f/Q81202113:2f:07 :::c;ts

 7

Stat~ is n'!Qre than 50%, or ~ny of the [Link] private banks., e.g., HPFC
· !;Jank, ICICLei;'lnk, Kc,,tak Mahindra Bank, i?ink Qf America, Chase, c;ity
·bank,• e~·,., with the clause of automatie ren~wal of prin~~'\ntj◊
[Link].?f--t~e_.· interest [Link] ~o the. li.n\<eq_ . ~c_'?__vnt.. · . S· u~~~xed.· _· ...
· depQsit <need not necessarily be macle · from the · ~OQ\mt· 'of)the ·
[Link]. ~r.. If such .a fixed ·deposit is maete.• man1Jall-y)t;vf~_~-
._rigin'a.l .
receipt has t9 be deposited. If made qnline, th.~ th~~ attested py · .
~my Adv<;icate has to be filed, arid the c:lep<?s~~~hall get the online
. liquidatiori disabled. It shall be tot~I di~r,~fr~\'Qf>the. petitiqne~ to
cho9se between surety bonds and_ fixe<;J ~~p.03,ts. During the tnc;il's
pen~E:!ni:y, _it s~all ~e open for the,~ne~'to apply fpr ~ubstitutiqn
. of fixed 9epos1t with surety b~0))v1ce-versa. SubJec;:t to the
.. pr,oceedings under s. 4_46 c;r~ if"a,~y. ~he. entire amount of fa<ed
· · • •()f.?~osit along with inter~~.tf~~i.t.~f, if ,any, shal,I pe fFnd0,r~ed/ret~rne~
to the. depositor(:!:.~hE( \_o·,, snall have a ·lieri over the depqsits 1,mtil
discharged_ by f~bsti~~ttoii,/and [Link].e up to the expiry of the
period mention~~ns'ef S. 437-A Ci-PC, ~973. In case the petiti<;mer
·. .,., ,· . ' /
opts fq( su_r:~ty bonds instead of fixed deposit. then the concerned
-~.c~.ain the reasons for such persons to stan~ as s~_reties
:. Court-~.t~a.
· ... and/r~~pt such sureties only if the Court is convinced that the
.. _ · . ·<)_~~:~~not the stock sureties, and in case of default, are capable
/'. ~~p~cl~iM the petitioner. . . .
'
',< ( 'i:3/·. ,· C, ~ . . ,
The ·.:furnishinQ . of the personal bonds shall Qe d~emed
,

~0acceptante of the following and all· other stipulation~, terms, and

condft1ons bf this bail order:
a) ~ The petitioner to give security to the concerned Court(s) for
attendance. Once the trial begins, th~ petitioner shall not, in any
.. · manner, try to delay the trial'. The petitioner undertakes to
appear before the concerned co;urt, on the issuance of
·. summons/warrants by such Court. The petitioner shall attend the
tri-al on each date, unless exempted, and in case of appeal, also
prpmise to appear before the higher Court, in terms of Section
437-A .CrPC.

I
 b) The atte!$ting officer shall menti9n on the reverse p~~e of
personal bonds, the permanent add~ess of the D~titioner al9ng
· with the phone number(s), WhatsApp number (if any), _ 7mall (if
any);: and. details of personal bank account(s) (if availaP,JeJ,..-1 ) ◊
cl .·· ihe petitioner shall deposit hi$ passp<:>rt, if 1119t
alre;:idy seized by the Police. ·
· dl' · The petitioner shall, within $h~r,ty day& _qf .bl&. rel,=q~e
from 12rison, procure a smartphone, and inform its IMl;:I number
and other details to the SH0/1.0. of the Police station mentioned
betore. He shall keep the phone focation/G,PS always o~ the "OW''
mode; B:efore repladng his mobile prone, .he shall produce the
existin9 phone to the SH0/1:0. of t~e polic,:e·· ~tatiQn and givt
[Link] the new phone. Whenever t~e lnvestigc)ting officer asks
him to share his location, then he sball immediately dQ so. The
petitioner shall neither clear the loc~tion history nor format hi~
phone without permission of the conc~rned SH0/1.0. H~ shall al$O
not clear the WhatsApp chats and calls with9ut prodvcing th~
phone before the concerned SH0/1.0.
e).. .The petitioner sha!fj~1\ihy¥stigation as an.d w. hen c~lleQ b·Y. .
. the. Investigating Offi~e~OFJ~)'iy Superior Officer. Whenever the
. inve,stigation take{(~~ 'Within the boundaries Qf the Pqlic,:e
Station or tl:if:~olit~ep~ , then the petitioner shall nqt Q(.':l [Link] .
•before. 8 AM/and s~all· e let off before 5 PM. The petitioner shall
not be sui:,,~e~ted) ~\, [Link] m$thods, inc;lec:ent language,
inhuman treat~~nt, etc. · · ' · ·

. . :. . ·.f)-~:~T.
✓.h~stitioner shall [Link] w·. ith [Link] [Link],gation a. ,t all
· m· \[Link] as may be required, and in the event offailure to
/ :___- , ·t will be open for the prosecu~ion tq seek cancellation of
◊. \~~~·) granted by the present order. . )
· ~0;; <:..fKe petitioner shall not influence, browbeat, pressyrize,
('-,/~··./.
·."""'"'~[Link] a. ny inducement, threat, or [Link], directly or [Link],
~ V to• the witnesses, the Police officials, or any other person
·. ·, · a(:quainted with the. facts of the case, to dissuade them from
· . · disclo~ing such facts to the Police, or the Court, or to tamper with
the evidence.

hf .· In addition to standard m,qdes of processing · service of .

· .·. surnrYlbns, the concerned Court may serve.. the accused throt,1gh.
'
· 1:~Mail (if any), and any instant. messaging' service such a.s
WhatsApp, etc. (if any). [Hon'0le Supreme Court of India in Re
Cognizance for Extension of Limitation, Suo Mato Writ Petition (C)
No. 3/2020, I.A. No. 48461/2020~ July io, 2020]. ·
• . '
'
p .· The concer~ed Court may also .inform thf:t accused about the
. issuance of bailable and non-bailable warrants through the
· n,bdes mentioned above.
 9

. ' ' .

· il '.i~ \he first instance, the CoQrt slni;lll i~sye s(Jmmons en()! ma~
. send Sli!f;h summons thr0,vgh SM$/ Y,.,hatsApp mess?lge~E~. ail. '
kl··.·.· ..1n. c;:ase
· speeiftec;I .[Link]
.• ti·[Link].·
date,
then the er fa·[Link] t·o. ·. ap·. p. e.;·i .C:,:01,1rt
concernec;I ar bE;?fore .... [Link].issC9 ~
mi:,Y .~· he◊·
1..bl~
warrants, and to enable the accused to know the ~te,t o0rt
may, if it so des. ires.. als.o .inform. the petitio~r about c;h
B9 ilal;>le Warrants through SMS/ WhatsApp me~~~/· Va(J>
ll . Finally, if the 1;>etitiqner still fails t~/~Ut in"-a appea. ranee... ,
th';:n the concerned C,[Link] may issue [Link]) . arrants to
procure the petitioner's [Link] anc;1 sen°'-t~ petitioner tq the
Judicial custody for a period for whi<;:h/fhf'<;~ern~d c;o1,1rt may
deem fit and proper to achieve the pufp~se,.) .
' • , \ ........ ✓ / ••

. ~nt~n.~a~~ ~~e"::;,ac::~,;t/;.~:.~~~~:;.
pay · all the expendlti{e'\Cqftly the prlnclpal am~unt
~~:e.i"r:a:![Link]; .

v,,.itho1.:1t Interest)., that h~at".[Link] l.nc1.1r t9 pro. C!Ju.c;e

him before such C:ou~p ~'vJded sfuch [Link] excee«;ls the
amount ~ecoveraJ>~!"~,~fc,rfelture of the ball bonc;ls, an,
also subJect,.!o ~h~ Pf~V1s1ons of SectiQns 446 & 446·.4 qf
CrPC. The petlti·o~/'!5,,fa'1lure to reimb1,1rse the State shall entitl~
the .trial ~oQrt tq--,prder the transfer; of money from the bank
account(s) Qf'{he)p_etitioner. However; this recovery is subject to
.. the condition,._flj,at' the expenditure incurred must .be spent to
. ·· · trle~-,t~petitioner alone and it relates to the exercise
. . . ·. t,J de. a e. solely to ar.r~st the petiti9ner in that FIR, an<;i d,'iJring.
. . .. · . . . t~~ y e, the Police had not . gone for . any other
. •· . · !PU!'.~ unction what so ever. . . .· ·

. ·:('-.·. _·.· ~~•

\. • <~. (~~.~\~~:.{·,~.·.•·~. ofpetitio.?er.
".:Wa)1/e s~all imme.·[Link] [Link] ab. out th~
res1dent1al addr,~s., an~ change of phone
·"· · ✓ · . numbers, WhatsApp number, e-mail accounts, , and nc;,t;
~" ~, ... late. r .than 1~ days from such m~diflcatipn, to the Police
•v Statipn of this FIR, and also to th~ concef-ned Court.

ol The petitioner shall abstain from all criminal activities. If ·

. done, then while considering bail in the fresh FIR, the Cot,1rt shc;1II
take into account that even earlier, the Court had cautioned the
accused not to do so. ·

pl . In· case of violation of any of the conditions as stipulated in

this order, the State/Public Prosecutor may apply for cancellation
of bail of the petitioner. Otherwise, the bail bonds shall contim,ie. ·
to r:[Link] in force throughout the triali,and also after that in terms
·of Section 437-A of the CrPC. . ·
i

i ::: 0Qwnloaded on • 'l6/08/20'l113:'l6:()7 :::CIS

 ql · 01,1ring the trial's pendenc;y, if ;th~ petiti1;mer repeats th.e ·
offence qr qm,mits any offence where the ~entence prescribed i$
. severi years or more, then thE: State may mc;>Ve an· appyo~·ate
application fqr cancellation of this bail. / /~') ◊
24. The le 9rned Counsel representing the accused and th~fflt? in

whose presen<;e the petitioner puts signatures o,n: ~(rQna~c;ls

shall explain all conditions of this bail order t o ~ ~ ~ r . i'n
vernacular and if not fe1:1sible, in English.
1
?, :"0 ~

2s. In case the petitioner finds the ba'il c nd1tic;m(s} as viol1;1ting

fundamental, human, or other rights, or c~1~~ · ·cylty due to any
situation, then for modiftc;atic;m of such terrQts.)Ahe petitioner may fil~
. •i:! re.· asone.· d applic. ation [Link] .this (~(}1.• nd·a. .•·ft~r ta. k. ing cqgnizance. . ,_
even before the Court taking cogt'.ffJn~J;:,t the trial CQIJrt, as the ~ase
may be, and such Court shal,I ~~'.·~co~petent to modify or delet1;
't' . ( ·. . ·, '
.. any COn d I ,IQn. ,,-·····>·, ',.) j-/ ' . , . .. ,
: . j/ /''"" "~\ '·,, ... ,,~·! . • ': . . '.

.. · 26.. This order doesp~.(J-~)ahy mann'er, limit Qr restri,ct .the right,s of

:. the Poli<;:e. or t4.'i-;:;·v~s~gat:fng [Link];:y, from further investigetiQn in
· .· accordance wit·~~~ .. / . ·

· . n ~~~~~e Court has granted baH• in favour qf. ac;.cus..ed, stil.l

A~.%'1
· · t · · ·s~ comes to an end, nor dq the terms of jvstice. In th';!
neith~•
· ◊nte(;~~ ••··.. equity and fair play, the matter· neetjs , further .
. ~.·.~qde.
•.¢ ~~J . Given th.e followi~g reasoning, this Court is requesting .·
<>,~~~al 'Court to expedite the tnal. . .
''
....
··. ',,<>2s, : Every visitor to our country comes for. a specific
' ' .
p~rpose a,nd, for ..
' ;
I
·. a limit~d time. However, .if during the period 6f her s~ay, they, get.
arraigned. as an accus~d in a criminal case, then she gets st1,.1ck up
. here, It may be traumatic to her, and to her educati~n. family, friends, · ·

" business, and n number of things, which an ordinary human bein!;J

. cannot ev~.n imagine. The answer lies Jn the speeiy disposal of 1cases
of foreign nationals,
.
whether they are in custody or on bail.
'

·· 29. , Learned Additional Advocate General, submits that a few Foreign

. Nationals, while in India, deal in substance trade.

, ::: ·0Qwnloaded on • Z6/08/202113:Z5:07 :;;C/S

 11

~o. The $Qlutiqn to this lies not in denying bail. It lie~ in verifying the
ante~edent~ of these types of suspects, b'~fore approving 9/~f.~~h·\ing ·
Visa, and on.c;e accused in sl)bstance ab1,Jse, then revokin~~~(isa.◊
Synergy. of law with technology is the next big thing. ("'-. '\)

. ~i: Any 9bservation mad.e hereinabove is neith~r'b~c;>n of ·

. opinfon on, the merits of the case, nor shall 1:)1'~ tria1"~rt advert to
these comments. ) ~. . ·

· . a, .. Th• court attesting the b0nds shall '({73s~pol1 the ~eitified

. copy Qf [Link] order. Any Advocate foN\e pe.'titt¢..r:1~. r may downlqad this
order .from· the website of this Co~~~,Rd attest it, which shall be
swffic;ient for furnishing bonds "rfd, ~'Q,_e'retard. The ~owrt Master $hall
hc;rndover an authenticated~9~~rtKis qrder to the Counsel for the
Petitioner and the Learn~dAqv~<ate General if they ask for the same.
. ( ("""•\ \ ~- .. --

33, ln'return of1t1\e)re'E~&m)curtailed for 'breaking the law, the Court

beJieves that t~\~c~;u)~·d··'shall al~o reciprocate through desirable
· . behavior. · ··, .... :. __ / ' , , _·

•. _·... . . ·. · 34 . . ~; . .,C(d~~~ng the p~o~osition~ ~f law, involye~f in. this ~a~,te~,• I

:· · · •· hav .;~~ed all my s1m1lar dec1s1ons, and without any dev1at1on
· . ~\&~~(l
1 is m~re comprehensive and up to date. Resyltantly,
._ ~~i~1.!~point in citing all previous judgments/orders pronounced
<,,:✓-<·~e, ~here the proposition of law was similar, or somewhat similar.
V3s. I express my gratitude to Mr. Arjun Lal Advocate for ~endering
excellent assistance and conducting this case Pro Bono.

. The petition stands allowed in the te~ms mentioned above. All.

pend in~: applications, if any; stand closed. ·
..: :
. . ..
I
(Anoop t:·hitkara),
'' . Judge.
September 22, 2020 (ps)

..

::: . C}ownloadec! ,m • 26/08/202113:26:()7 :::CIS

 . MANU/HP/0583/2020
. . .. ·.
·; '
I '

t.N THe HIGH CQURT OF HJMACMAL Pl;tAOt;SH AT $MIM'1.A

','

Cr. MP(M} No. 232 qf 4:020

Oecid~d On: 03.01.20;?0
Appellants: Ifeanyi Frc\'nk
.··. . Vs. i
· · Respondent: ~tate of Himachal Prad,sh

hlqn'ble J1,1~9es/Corarn:
.· .· Anoop Chitkai-9, J;
· <;ovotel.,: . . .· : .. · .. . . ·
·· P:orAp.p~ll,mt/Pet1tion~r/Pfaintiff: La/it Kvmar Seh~al, i,4qvocate
· F9r Respondents/Defendant: Nanci Lal Thak1;11; A<;ld. A.G. ?n(i R?m L,.c1! Thakur, Asst.
A.~: .
DECISION
Anoop Chitkara, J.
1.·An l,,nder-trial pr-isoner, holder of Nigerian Passport, has come up before this Co1,1rt
[Link]"iw Section 439 ·of the Code of Criminal Procedure, 1973 (CrPc;:), seeking bail,
yn~er Sectiqris 21 $:. 29 of Narcotics Drugs and Psychotropic Substances Act, 1~85
(NP,PS [Link]), for. selling 52.60 grams heroin to c::o-accused · Wasv Dhir and ?ilSQ
PQ$$e'ssihg lf
3 gr~rn:s of heroin (Diacetylmorph!ne}: · . . . , .·
•.·. 2; eased ori a Firstinformation
Report (FIR); the police arrested the petitioner, On
24.$.2919, in. FIR No. 73 of 2019, dated 20.9.2019; 2020, registered under. ~.ecti9ns
21 & 29 of the NDPS. Act, read with Sections3 and 14 of the Indian Foreign 'Act), in 1

· p9ILc(; Station Kandaghat, District Solan, Himachal Pradesh, disclosing cognizable ant;;!
·. non-bailable offenses.
.. . . . . . . I
3. Earlier, the [Link] a petition under Section 439 CrPC before Spec;ial Ju9g~-
·.. I.I, Solan, District Solan, HP. However, vide ord~r dated 18.11.2019, the t;:o\,lrt;
· disi'flissed the petition filed by the petitioner and. his :co-accused.
. ' '

· 4. l h~ve n~ac;I the statLJSreport(s) and heard counsel for the parties.
• ~ • • . I,

· ·~:. :Mr; Nand Lal ·Tha~ur, Ld. Additional Advocate ~eneral, based. upon instructions, .
.
··stated that the
. , .'',
Passport
.
·of the petitioner is genuine. :
. '
I '.
. '
. '

FACTS:
6. The aUegatio~s·· in the First Information Report and the gist of the evidence
.• collected by the Investigator are:
.. (a) That on Sep •. 20, 2019, a~ about 8.45 a.m., police party headeo by Sl
Sanjay Kuma~ Incharge SIU, Solan was patrqlling for detection of <:rime.
When the police party was on its way from Waknaghat towards the J.P.
. . University, then at a place known as Raawali they stopped and went out of

[Link];[Link]
 the vehicle. At [Link] a.m. a
v,01,mg man who was carrying a ~ag was seen
walking from th~ .side of WakanaQhat. The Sub Inspector called him to know
. hfs Identity [Link] on this he turned back and started running. On this the police
· • pil)rty epprehende'd ·him on the suspicion of carrtYing some Items of theft. At
.· that time th~ pc,li~e party c;issociated indepenqent witnesses and in their
pr~senc;:e inquir~d about the said person who r~vec;1led as Wasu Ohir. From
. · • the search of the ·bag which the c;1ccused wa.s cc;1rrying . poli<;e r~covere<:l.
•. heroin. Further or,f detection from the Drug Detection Kit it tested positive for•.
heroin. After this the police party weighed the recovered sµbstance on ·
weighing machine and it measured 52.60 grams. Thereafter the polic~ p,i;irty
i;;~rried other proceovral formalities under the NDPS Act and the [Link]
F.I.R. came to be registered. The said person was a,rreste~L ·
(b) [Link] interrogation of accused Wasu Dhir, 'he revealed the nam<;i o,f the
present petitioner Ifeanyi Frank which led to hls arrest on 24.9.2019, Fc;1c;:ts
preceding to his arrest are that after the interro~ation of accuse~ Wasu Ohir,
ponce went to Delhi and got a phone call made:to the petitioner herein from
acq,ised Wasu Dhir to purchase contrabanc;l on which the petitioner r~(3c;heo
the spot and acc(Jsed Wasu Dhir recognized him. He indi(:ated to the; i,oli~~
. · tha~ he had purchased Heroin from this person.. . .· , . · .• ·... · ·.·- . .
.. (c) Sl,JbSequently, 'the petitioner was arre'sted and after completing' th~
.· procedural [Link] brought to Himachal and sent to Ji;,c;Jicial c~?tQQY, Hi$ .
interrogation further led to recovery of 14.3 gra,ms of Heroin from Delhi.
PREVIOUS CRIMINAL HISTo'RY
. .

7. I\J'either the bail petition nor the status report [Link] any previou$ crimlnal hist9ry
9f the bail petitioner. ,[Link] dated 25.2.2020 filed in compliance of Co1.,1rt oroE;:r
.-. c;fated 19..2.2020 [Link] to the effect that the petitioner is not having any Griminal
·· history. · l · ·
SUBMISSIONS:
.s. The learned coun's~I for the bail petitioner ;;ubrr\its that the allegations ar~ f~lser
.. and concOc:ted. · · · 1 · · · ·

. 9. On the .contrary, Mr. Nanci Lal Thakur, Ld. Advqcate General, conte,nd;; that th~
investigating officer has collected sufficient prima facie evidence. He f1,.Jrther sut:m1i1:$
.. · that if this· court is inclined to grant bail, then such a bond must be subject to
stringent conditions;
. ·-· ANALYSIS AND REASONING:
.. . . . .

· 10. Pre .. trial incarceratipn needs to be justified deperding upon the heinous nature of
·. the offerice, terms of the sentence prescribed in the Statute for such a crime, a.cc1,1sed
. , fleeing from Justice, hampering the investigation, and doing away with witness~s.
· The Coµrt i•s under a:·Constitutional obligation to safeguard the interests of the victim,
.· th~ accused,· theSoci~tY; and the State. ·

· 1·1~ While dealing with the bail appliqations of forei~n nationa1.s,' the most significant
... challenge the Courts· face is to se<;ure their presence. Code of Criminal Procedure,
· 1~73, (CrPC), has classified two types of offenses, bailable and non-bailable. Section
2(a} of the crPC defines bailable offenses shown as !the offences listed. as 'bailable' in

· · 26-08-2021 (Page 2 of 8) [Link] Sam~er Parekh

.. tbe Fir$[Link] of '¢rPC or any other law. All the, left-9LJt ~rimes ·~m; deem~c;l to Ip~
. Nqri'."baiiable. In bqila~Je offences, a Police officer is under i;m ol:1ligatic:in tq · relea~Ei!
· · th~ as;cvsec(i on bail, subject to them f1,1rnishing b~il bonqs. lt m~c;ms thi;lt eYffn a
for<;ign ncJti9nal cannot pe denied bail in a bail91ble offem;::e. 1h1;rE9fore, the qyestion
of 5¢¢1,Jring their ~re$ence is not an absolute condition. H9weyer, in heinou.s gnc;I
b9nE;-chilling crimes, all which certainly are non-~ail aole, the pr~senc~ of the aq:14sed
1

m1i~t l:}e [Link] by the Courts, before granting the bail. Th\.JS, while dealing with b~il
petitiqns of accused who are not the citizens of India, one of the most important
· p~ram~ters to keep In mi·nd is the gravity of the offense .
.:.:(2. Section. 2 {vii'."a) of the NOPS Act defines q,rnmerc;ial qyantity a~ the quantity
. gr~~ter than,'thequantity specified in the schedule, ~ncJ S, i (xxjii~c;1), q~fin~s c;i' smal,I .
·. q(Jentity as th'e quantity lesser than the quantity spe1:ified in the schedule of N'OPS ·
Act The rem~ining ·quantity falls in an undefinecJ ~ategory, which is now g~n~rc;1lly,
· cane.d as intermediate quantity. All Sections in the NOPS Act, which si:,~cify an
offence, al~o mention the minimum and maxim1.1m sentence, depem;finQ 1,.1pon the
• QUqntJty Qf the substance. When the substance falls under commercial qvantlty
. stat1,1te rr,~ndc:1tes minimum sentence of ten years of imprisonment i;lnQ ~ minimvm
fine of INR One hundred thousand, and bail is subje~t to the rid~rs mandat,d, in 37 s.
of NOPS Act.
1:$. lri the present case, the quantity of substance s$ize9 is less than the <;ommerci;;il
quantity; Therefore,· the bail application stands on different parameters c;mg is similar
to baiJ petitions unoer regular statutes.
jl,1plCIAL' P~E<::'e:O:ENTS:
.. ·.. ' ' '

..· 14. In Lachhman Dass v.

' ' ' \

Resham Chand Kaler, MANU/SC/0028/2018 : (201e) 3 SCC .

187, Supreme Court holds,
"10 .... The law under section 439 Cr.P.C. is very clear and in the eye of the
l~w every accused is the same irrespective of th¢ir nationality."
. 15_. Iri Gurbaksh Singh Sibbia and others v. State of Punjab, MANU/SC/021S/1Jso :
. 1:980 (2) sec 565,: a Constitutio,nal bench of Supreme Court holds in Pqra 30, as
·. · follows, . .

''It is thus dear .that the question whether to grant bail or not depends for its
answer upon a va·riety of circumstances, the cumulative effect of which m1i1,t
.enter_ into the judicial verdict. Any one single circumstance cannot be trE;?ateQ
as of universal ·[Link] or as necessarily justifying t'1e grant or refusal 1;>f
. · bail" . . . . .

.. 1 a.
In Gudikantl Nari:)Simhulu v. Public Prosecute~ High Court of Andhra Pradesh,.
MANU/SC/0089/1977 : (1978) 1 sec 240, Supreme ~ourt holds:·

'"'Bail or jail?" ~. at
the pre-trial or post-conviction stage - belongs to th~
.. blurred area of. the criminal justice system and lqrgely hinges on the hunch qf
· the bench, otherwise called judicial discretion. i The Code is cryptic on this
topic; and the court prefers to be tacit, be the order custodial or not. And yet,
the issue .is one of liberty, justice, public safety and burden of the public
.treasury, all of which insist that a developed jurisprudence of bail is integral
~to i:.:I: s.C>Gi~Uy sens,itised judicial process. As Chamber Judge in this s1,1mmit
.:,court I .have ;o deal with this uncanalised case-flow, ad hoc response to the

'
2e-08-20?1 (P~ge 3 of 8)
.
·WV'{'-N,mal"lupatra.<;:qm Sameer Parekh
 ®
'

JZlmanupotra .•·

dqcket being the ,flkkering c:;andle light. So it is desirable that the [Link] is
{:lispose(;i ;..()f ori basi<;: principle, not improvised brevity drape<;! ~s discretion.
Personal !it;)erty, deprive~ when bail is refused, is ti;,o predous a value of qvr
. i;qns,titutionaJ syst~m recognis<;d under Article 21 that the cru'cial [Link] to,
··n~gate it is a great trust exercisable, not cas1,1ailly but judicially, with lively· ·
concern for the cost to th!;! in~Hvidual and th~ comrtu,1nity. To. glamorize
· . impressiqnistic orders as discretionary may, on occasions, mak~ a litigativ~
· gc,ml;>le decisive of a fundamental right. After all, personal liberty of an
accused or convict is. fundamental, suffering lawful eclipse only in terms of
'procedqre esti:!plished by law'. The last four words of Article 21 are the life
of that hµman right
· 2. The doctrine of Police power, constitutionally: validates punitive prQc;:es?es
for the rnainten~nce of public order, security of the State, national integrity
anQ the [Link] public generally. Even so,: having reg~rd t9 the ~olemn
iss1,.1e involved, deprivation. of personal freedqm, ephemeral ·or ens:ll,.1ring,
· . [Link] founded on the most serious considerc~tions r1:;levant to the. w~lfar~ •
. , objectives of sodety, specified in the Constitution. II .· ' ''' . . . ' .

16 . ... The delicate light of the law favours release unless countered l;)y the ,
n~gative criteria necessitating that course."
1 7 . In Kalyi::in · Chandra Sarkar v. Rajesh Ranjan @ Pappµ Yi.t~ev,
· MANV/SC/0045/2005 : 2005 (2) sec 42, a three-member bench of Supreme Court
. · holds,. . .· · .

· .. 1118. It is trite .law that personal liberty c;annot be taken away except in
accordance with·. the procedure established by law. Personal liberty is 9
constitutional · guarantee. However, Article 21 vvhich guarantees the i;1bove
· ·. right also :coh.t~r:nplates deprivation of ,personal liberty by procedu,ref
.. · eptabll$he.d by law. Under the criminal laws of this country, a person c!CCiJ$~d '
· .of offences which .are non;,bailable, Is liable to be detained In c~stoc:ly [Link] ·
the [Link] of, trial unless he is enlarged, on bail in accordance with l?W, t
Svch detention cannot [Link] as being viplative of Article 21 sln<;:E; the
same is [Link] by law. But even persons accused of non-bailable
· offences are entitled for bail if the court concerned comes to the c9nch.,1sion
that the. prosecution has failed to establish a prima fade case against him
and/or if the court is satisfied for reasons to be recorded that in spite of th~
. exi'Stence of prima facie case there is a need to release such persons on bail
· where fact situations require it to do so. In that prqcess a person whose
• applicaticm Jor.:enlargement on bail is once rejected i's not precludeo from
· filing a spbsequent application for grant of bail ir there is a change in the fac.:t .
situation. In, ~u_ch cases if the circumstances. then prevailing requires that ·
,such' persons to he released on bail, in spite of his earlier applications ~eir;ig
rejected,;the courts, .can do so." . , . · .· . · . ·
. ·. 18 .. Given the above reasoning, and keeping in view the quantity of contraband( in .
my considered opinion, the judicial custody of the petitioner/accused is not going to
· . serve any purpose whatsoever, and I am inclinedl to grant bail on the followilllg
grounds, but subjectto stringent conditions: '
a) As per the FIR, the substance involved is Heroin, mentioned at Sr. No. 56
:of the Notification, issued under Section 2(viia) and (xxiiia) of NDPS Act,

WWW. [Link]. com ' S,ameer Parekh

 . ·.•.
• ·. ' ' ·.. .®r-:..··_'
' '1 \..):

.IIICIIIUP••(lj) ,
. . .

. specifying small ano commercial quantities ·of grl,JgS i;ind psychotropic

.· • substamc~s. The qvantity of dru~ involved is le9s than Commercial Q1,,1c;mtitY
· . qut greater .than $mall Quantity. As such the rigqrs of Sec;tiqn 37 c;,f NDPS Ac;t
· sh 911 not apply in th~ present case. Resultc;mtly, the pres~nt C9$e h{!IS to PtJ!
treq1ted like any other case of grant of bail in a penal Qffenc;::~. ·
.b) The petitioner is in jl.J<;licial custody since 44.9.20t$.
· ·.¢)The [Link]:ltion is complete 'and the repqrt UhQer secti'Qn, 17$(2) (;:'r·PC
:stqnds me~·. · · ··. " · ,
National, holding 1a Pa·ssp9rt 9f Ni9,ria bei;Jring
-.•. 9) :,:'he petitioner is a Nigerian
pas?port No. A0535775Q. The State has already verified from the conc;~rne<;I
·_ Ernp~ssy about the genuineness
' . '
of the Passport.
. •
.
"
. 1s,f. As a result, the present petition is allowed. Th¢ petitioner shi3II be r~le~$eP on
~elil in . th¢ present case, in connection with thtf FIR mention~~ ~bovE;?, 9n his
· fvmi$hin; a persqn~I bond in the sum of INR 1,SS,000/-, (INR One hliJn<;lr~ci q1nc:J
rifty,... frye tho4sand only), to the satisfaction of th~ trial CQurt, by dep9siting it in the ·
9ffi¢ial <i!C<::ovnt, as· [Link] the details and directions of the tric;1I Covrt. The p~titipner.
· ~h 9l1 ~lsp fV,rni$h on~. surety in the sum of INR SOQQ: (lNR Five thoysqnc;J only),, tQ t.h~
· • s9ti~fi;lc,ti9n . of the_ [Link] Court. The furnishing of bail pqnds sh~.11 Qe 9eemec:I
ac;c~ptan<;e of all stipulations, terms, and condition~ of this 1:>~il order: . ·_ . . ,
. . a)numt;>er(s)
. '' .

The petitioner shall give details of Passport Nl,Jmber, Visa nump~Hi phQn(;?
. (if . available), WhatsApp numben (if availc;'lble), e-mail (if
available}, personal bank account(s) (if available), on the reverse page 9f the:;?
person~! bonds and the officer attesting the personal bonds shall as<;ertai n
the identity of the bail-petitioner, through these documents .
. ·. . . . . . I
I;>) The Petitioner shall not leave India without the prior written approv~I pf
the Trial Court · ·. · ·

c) The Attesting officer shall mention on the reverse page of personal bonds,
.. th'e permanent-add~ess of the petitioner along with the Passport nymber with
details,
.
erhcJil· of the petitioner, and
,, ' .
WhatsAp'p n~mber, if any. ' '

' d) The petitioner' sha.11 not I influence, threaten,: browb~at, or pressurize the '
· · complainant, witnesses, and the Police official(s).
e) The petition~r shall not make any inducement, threat, or promise, c;lirectly
or indirectly, to the Investigating officer, or any other person acquainte(:I with
· the facts of the• case, to dissuade them from idisclosing such facts to th~
. ·.·.- Poli(:e, or the Court; or to tamper with the evidence. .
· ·. ·. f) Once the trial begins, the appellant s·hall· not i~ any manner try to delay the
[Link]. The [Link] undertakes to appear before; the concerned Court, on the
issuance of summons/warrants by such ·Court. 11he petitioner shall [Link]
· trial ·on-each date, unless exemp'ted, and in cas~ of Appeal, also promise to
. · appefl( before the .higher Court, in t~rms ,of Section 437~A CrPC., ·
g) There shallb~ a presumption .of proper service to the petitioner about ,the
date of_ hearing in · the concerned Court, evtrn if it takes place thrqugh
SMS/WhatsApp message/E-Mail/or any other similar medium, by the Court.

[Link]
· · h) In the· first . instance, the Court shall issu'e st,1mn,ons' ano ,·may inform the : ·
·. i?[Link] <;1bout su:~h
."
summons through SM$/WhatsApp. message/E;-Mail,
. ' ' '

·i) ln q,s~ the petitioner fails to appear before the Court on the specified qate,
· then the•. q:mcerned ·Court may issue bailable warrants, and to en~lpl~ the
~ccusec;I, to know the date, the c;ourt may, if it so desires, also inform the
.·. petitioner about sw;:h Bailable warrants through SMS/WhatsApp m~ss~ge/E-
.· Mail.

j) Finally, if the· petitioner still fails to pLJt in an appe~rance, th~n the

c;9n~erneo Court may issue Non-Bailable warra~ts to [Link] the petitioner'$
presence and send the petitioner to the Judioial custo~y f9r a perioc;J for ,
vyhich the conc;em~d Court may deem fit and prqper.
'· .· k)I~ case of Noh-:appearance, then irrespective of the con~ents of the pail ·
bonds, the petitioner undertakes to pay all t~e expendit1.,[Link] (only the principal•
. amount [Link]), that the State might: incur to produce him before
. such Court, provided such amount exceeds the amount recoverable aft~r
· forfeiture'·ot the bail bonds, and also subject to the provisions of $ections
446 & 446-A of. CrPC. The petitioner's failure I to reimburse the Stat~ sriall
·. entitle the trial Court to order the transfer of money from the bank acco1,1nt($)
of the petitioner. However, this r~covery is subject to the condition thqt th~
. expenditure incurred must be spent to trace th:e petitioner and i~ relate~ to
·. the exercise undertaken solely to arrest the petitioner in that FIR, c:;1nd dvring
[Link] voyage, thePolice had not gone for any other purpose/function whc;1t $0
ever.
J) The petitioner ·$hall abstain frbm all criminal activfties. If done, thEm .While
considering bail.'in the fresh FIR, the Court sha1II take into account thatevenl
earlier, the Courfhad cautioned the accused notlto do so.
m) The petitioner shall intimate about the change of residential address and
· ch,ange .of phor,e numbers, WhatsApp number) e-mail accounts, within 10
.· days frnm such modification, to the police station of this FIR, and also t9 the
cor\cerned Court. ·
.. :·n)[Link].
The petitionerjhall deposit his passport, ;if not Already seized by the
. .
o) The petitioner shall, within ten days of his release from prison, procure a
•smarl:phorie/ and:iriform its IMEI number and other details to the SHO/r'.Q. of·
.. the :[Link]· st~[Link] before. He shall keep the phone location/G'PS ·
always. ,on .the "ONII mode. Before replacing : his .mobile phone, he. shall
·produce the existing phone to the SHO/I.O. of the police station anc;I give
details of
the new· phone. Whenever the [Link]$tigating officer asks him to
share his location, then he shall immediately do so. The petitioner shall
neither clear the location history nor format hi's. phone without permission of
the concerned SHO/I.O. He shall also not clear the WhatsApp chats and calls
without producing the phone before the concerned SHO/I.O.
. : i

p) During the pendency of the trial, if the petitioner commits any offence
under NDPS Act, even if it involves small quantity, then it shall be open for
·. the State. to apply for cancellation of this. bail order. q) In case of violation of
· any of the c6r:iditions as ~tipulated in this order, the State/Public Prosecutor
,·' • ,. • I ' . , '

. .
· it,-Q8·202t(Page 6 of 8) · ww,[Link] $ame~r Parekh
 · ·. ·. may c,ipply f9r <.:qnc;ellation of bail of the petitiQ~er, ancJ even the c;Qncern~d
· C:[Link] s;hall be <;;On')Retent to [Link] the bail. Qtln~rwise, the t:,~il t,onds sh~II
~ontinue to rernain in fore~ throughout the trial and al~o aft~r that in t~rnn$ Qf
. $ec;:tion 437~A qf the CrR(;. · ·
' . . . .. . . . '' .
. . . . . ' '. .

. r) The leijrned couh$~1 for the petitioner, as well /qs the att~stin~ qffi(:;er, ,~hc;3IL
.
explain the conditions
. .
of this bail to the petitioner.· · ·. ·
· 20. l h9've arrived at the amount mentioned above c;>,f bond money l:;>y converting the ·
· ;;1nnval per capita: income of Nigeria, and after c;onyerting it in INR and rouncHng i't
upwarqs. As per http$://[Link]/, the pbr i;:apiti::l, GDP of Nigeria is 2028
· l,ISQ, per anm,im. As per [Link] 1 V$0 eq(Jals
ro1,1Qhly INR. 76. ·Thus,· the bail amount of persona:1 bonds comes by m~ltiplyir:ig it
with rate of. rupee to USO. This Court makes it clear that these ar(;! not g1,1ideline$ to
arrive ·<;1t the· 99nds and,. its value. ·
· 2;1. •.the fogi~ behinc;I f~rnishing personal bonc:ls witp Q?ink <;leposits is thc,t w~ !(now
· that, African~ [Link]• have any relatives in . In(:fi~. Even th~ir friend~ am jt,Jst .
· ac;;gualnta,n(;;es, and it, woLJld be impossible for thel]Tl to ·produce the bail petitioner
· t)efore Court;. even if. they stand as sureties. When foreign national$ are as~~d ·tq
f~rnish s1;,1rety bonds/ then the sureties retain i:;Jt lea~t 100% of the bond arnc;iµnt, ?JS .'
· · · $ecyrity to take carfil of proc;eEfdings under Sectiqn 446 of CrPC. [Link], eve,n after
tne trial is 9ver, it is practically impossible for the acc,used to recovE:!r thie money
. 1,1nle$$ the s~rety turns out to be an honest person. !Even in svch a ~it~~tiQn, what is
. [Link]~d is th.e .P'rin. cipar amount, without any inte. res.'t.. It has....led to a ra. cket qf. .Sl,J[~W
prpviqers in exchange for money. Therefore, the purpose of surety bonds has pe~dme .
9n ~xercise in futility, and the better option is to, keep the security deposit. ·

22. On receipt of the money in the official aCCOjUnt, the Trial Court shall issye
· dir~cti:ons to appropriate Court and all concerne~, to keep this am9unt in qn
a.yt9matically·renewable fixed deposit, to be opened /in any bank, owned qr contr9UecJ
l;)y th@'Centre, State or their units. In case any ord~rs are passed underSectiQn 446
. <;:rPCl. then the. bail [Link] shall be dealt with as per ;uch directions;· After .th·e
· · . q~mpletlon o.f the -Trial,. and the period specified i:n s. 4"37-A, and .[Link]<;t tp the
· directions of the Appellate Courts, if any, all this money, -along with interest, ~xcept ·
. ta>d;is·,. shall be fefµnded to the. petitioner, by trc1nsferring in his bank a(:count,
vvhetherln India or outside, following the law. · ·
.2 3. ·rn c:ase the p~titioner fin(;ls the bail conditibn(s) as violating fundamen~I,
· . hu.n:ian, or other rights, or causing difficulty d;ue to any situation, th<;;n for
rno~:Hfication of such term{s), the petitioner may ffle a reasoned application before
this Court, and after taking cognizance, even before the Court taking cogni~ance or
the trial [Link], as the case may be; such Court shal/1 also be competent to modify or
delete any condition. ·

•··•· . 24.:Jhe.::officer in whose presence the petitioner pots sigr,atures on personal. qonds
shalrexplarn
.
all 66nditions
'
of this bail' order to the petitioner, in English..
'
..- .

· is, Consequently, the. petitioner shall be released I on bail Jn thE:! present•cas~, in

·. 1connection with .. the FIR mentioned above, on her;fhis furnishing bail bonds in the
,terms
...... described. above;
,·. .
· ' . .

·.· i6. This otder does. not; in any manner, limit or restrict the rights of the Police or the
· , investigating agency, from further investigation in accordance with law .

. . Z6•◊8-2021(Page 7 of~). ·
• • • • • L '
www.m;;[Link] Sameer Par1;,kh
 [Link] pre~ent bail order is only for the FIR mentioneq apqve. It shall n'9t be c:,1
biank~t order 9f !n~il in any other c;:ase(s) registered against the petitioner.
. .
. . . :

28~ Alth~[Link] the CQurt has granted bail in favor Qf acc1,Jsed, still neither the issue
c~rn~s tQ an ~nd, nc>r clo the terms of justice. In thie inter~st of equity and fair play,
the matter needs fu:i-ther cqnsideration. Given the {QIIQwing [Link], this ,ourt is
· reqqesting theTrial Court to expedite the trial.
• _i9~· l;v~ry visitor to -Qur country comes for a -spe<;:ifjc pvri:,ose ;;ind for e [Link] time.
Mowever, -if -dufi,ng .the.-period of her stay, they get arraigned as an a,G<::IJS~Q. in a_.··
: ·cri-n,in@l·case~ then she ·~ets stuc~ up· here. It may [Link] to her, and tQ her·
·education; family; . friends, business, and n nµmbrer of tnings, Whi<;;h an ori;linary
·· hym~ri being\cannot ~ven imagine. The answer lies)n the speedy <;lisposal of ~as~s of
. f9fr,i~n niati_onals, whether they are in custody or on· bail. · · 1

· 30~ Mr. Nand Lal Thakur, Ld. Advocate General, sub mits that a few F6rei~n Nationals, 1

while in Inoia, deal in substance trade.

· ~1. The solution to-thi's lies not in denying bail. It l[ies in verifying the ante<;:eQent? Qf
thes¢ types of suspects, before approving or gra:nting Visa, and once c;iq:use(I in
substance abuse~ then revoking the Visa. Synergy of law with technology i$ th~ next
t;igthing.
1
3·i, -~ny· ob~:ervatlon: ~ade hereinabove is neither Ian expres!3ion of [Link] 9n th<; :,
m$rits .of tt:re ·case, not shall the trial Court advert to! these comments.
·:··· ' - - i
· '

~3. The CotJrt. Master shall handover this orde/to the concerned· 'braM~h', of th~
. Registry of this court, and the said official shall immediately send a copy Qf this
order .to the District and Sessions Judge, concerned~ by email. The Coyrt attes~ing the
. · t')pnds 'shaU not insist upon the certified copy of t~is order and shall download the;3
[Link] the w,ebsite of this Court, or accept a copy attesfed by an Advocate, whic;h
· ·.shall· be sufficient for the record. The Court Master shall handover an authenticat~d
c9py of this order to the Counsel for the Petitioner and the Learned Advo<;:ate General
. if. . .they ask
-
for the same;
. . . .
. .
· ·
34~ In return for the freedom curtailed by the State for bre~king the law, tht; Coµrt
·. believes
. .~
that the [Link]$ed
'
'
shall also reciprocate thro~gh
, '
desirable behavior.
.
·. .· · ·
35)whii~·d~·cidin'g:the,propositions of la; involved in this matter, f have c~msidered .
.. all the similar orders/judgments pronounced by' me. Thus, this order is more . ·
· · comprehensive and .. up to date. Consequentl:y,, given above, all previoLJs ·
.· judgments/orders passed by me, where the proposition of law was similar, or
somewhat similar, be not cited as precedent~ ..
. . . :

36. The petition stands allowed in accordance with the terms mentioned above.
©Manupatra Information Solutions Pvt Ltd.

. .
· · 2Q•08-2Q21(Page 8 of S) . [Link],1patr1;[Link] $ameer P@rekh ·
 .* iN THE HIGH COURT OF OF,:LH~ AT NEW DELHI
+ · ~~il,;AJlP~: 2n 1/~00,8

.. % Date of reserv¢ : 01.09.2009

Date of decisi<:>n: 23.09.2009

HARPREET SINGH BAHAD ... PETITIONER

Through: Mr. KTS Tulsi,[Link] with
[Link] and [Link] Pradhan,
(. Advocates

Ve;rsus

D.R.I. ... RESPONDENT

Through: [Link] :Aggarwal and [Link]
Aggarwal,• Advo~ates

CORAM:·
'HON'BLE·MR. JUSTICE MOOL CHAND!GARG

1. . Whether the Reporters of local papers Yes

may be allowed to see the judgment?

2. ·. To be referred to Reporter or not? Yes

· 3. Whether the judgment should be Yes

. . reported in the Digest?

· MOOL [Link],·J. '

I. · This: order shall dispose of the bail applfoation filed by the petitioner,

who is 111judicial custody since 20.8.2004 in a complaint case filed by the

respondents. under Section 21 of the NDPS Act pending before the

1
[Link] Chief Metropolitan Magistrate, New Delhi, on the allegations

that ahuge quantity of contraband i.e.'22 ..855 ~g of heroin was seized from a

MarutiZeh· car bearing registration No. DL:-9CJ-5397, which was parked

outside t~e Hotel Sangam Palace, Meera Bagl1, New Delhi on 18.08.2004.

[Link]. 2211/2008 Page 1 of 25

. I
 . ·_ .. The said car was found t9 be in the pOSSy~sion of two persons vi~. Ravinder

· • $in~h M~nn arid Roshan Lal, both co-accuse,d o.f the petitioner. It is alle&e,d.

that the recovered <;:ontraband were supplied by the present petitioner to the

90-accused persons .

.• 2. It is submitted by the petitioner, that tiiv evidence relied upon by the

respondent against him is inadmissible as the said evidence comprises of (he I

statemeht of co-acctised persons recorded under Section 67 ,of 'the NDPS.
: ' • ', ' ' • I • • ' ' ' '

Act, which cannot be used agains:( him unless it is corrobo~ated by other

·. .. ·. . . -· . ! .

. .. .
independent evidence. As far as his · own I statement is concerned, it is

submitted that the same was not a voluntary statement but was taken 1,mder '
duress and in this regard he made an application before the ACMM

conce~ed after he was produced before the ACMM along with medical

repc,rt whfch was prepared by the Jail Doctor and which shows that he Wl:lS

-_- tortured ~y-the responde'nts. As regards th~ ~tateme;1t of Ravi Bhatia, who

appeared as i>W-4 before the trial court, it is submitted that the said witri,ess
. .
_-has not supported the case of the prosecution. It is also submitted that even if

his statemei:it under Section 67 of the NDPS J\..ct is tak~n-into consideration,

_the same does not involve the petitioner with! the crime. He only said that

' the vehicle 1n question was left at his premises for repairs. The vehicle does

·--not· belong ·tcr the petiti~ner:

· 3. It _is further submitted by the petitioner that he is in custody for a

f
period. of: more than five years. The cas;e of the prosecution is .not

proceeding with pace and so far they have examined only twelve witnesses
,• • i

[Link]. 22p;2oos Page 2 of 25

 I
• • - I

and at least 10 witn~ss~s still remains

. , ' .
to be exa;tilined. Despite. the ciirevtions

. given bythis Court in the cas~ of co-accused being [Link]. 3317/2007

·. to expeciite the proceedi11gs in this case and to conclude the proqeedings

within a period of six months vide order date4 25. l 0.2007, the trial has not

· .been e::,rnedited. In fact, the report of the· Ad<;litibnal Sessions .fudge, South

Distri9t, sl?-ows that as on 14.09.,2009 only eight witrn;sses had bc;:;e.n

examined and despite detail'ed directions issueql to the DRJ for producing the
. ·: ; ; . .

witnesses by. fixing the case fr;m 4 1h March, 2009 to 6 th March, 2009, only

• two witnes~es were examined.

· 4. [Link] · petitioner has also submitted tl1at m the absence of any

. coi-roboratirig evidence, the continued detention of the petitioner solely qn

.· . · the ·stat~ment of co-accused and. the· statement

;.
of tl~e petitioner recorded . .

· under Section 67 of the NDPS Act, which is r¢tracted and is no~ a volunti,[Link]

. statement, the petitioner cannot be convicted iq this case and therefore, it is a

'
case vvhere,.the petitioner is entitled to be released on bail despite·rigor of
,' ' i '

Section 37' of the NDPS Act. Reliance has been placed on the following .

judgments:•·

• • ' '
I .-, .•. ' , '

,
Union of India Vs. Bal Mukund &!Ors. JT 2009 (5)SC 45:
. i : . • '

ii~ . •. : Francis Stanly @ Stalin Vs. intelligence officer, Narcotic

· , Control Bure@, Thin1vananthapiiram AIR 2007 SC 794.

iii. . Kartar Singh Vs. State of Punjab, :(1994) 3 SCC 569.

iv.. . Raju Premji Vs. Customs NER Shillong Unit, 2009 (7) SCC
..... 569.

. . ,: . ,,

' [Link]: 2211/2008 Page 3 of25 ·

'
. V.. State of (Jttranchal Vs. [Link], (2007) 1 sec 35S.
vi.,. · · Ranjit Singh Bralunjeet Singh Sharma Vs. State QfMaharashtra.
. -& Anr.. 2005 ll AD (Cr/) SC 193.

vii. Supreme Court Legal A id Comrhittee Repr(fsenting Undertrial

Prisoners Vs. UOI & Ors. - (1994) 6 SCC 731.

viii . . Noor Aga Vs. State of Punjab & llnr. 2008 VJ/I AD (SC) 435.

ix. ·· Kashmir Singh Vs. NCB, Bad· App/ic4tiiJn No. 2314/2006

· decided on 18.08.2006.

·x:. / ·. Suresh Kumar Sharma Vs. DR!. Bail Appliqation No. ·

108712009 decided on 07. 07. 200'1.

.5. The respondents on the other hand have [Link] that the siatemynts

recorded by the DRI officials~ who are not thei police officials, under Stiction
. 67 of the NDPS Act are admissible in evidelice against the maker of thQ$e

statements as well as against the others also, which means that it is

admissible against the petitioner as well as against the co-accused persons.

[Link] ~on-voluntary riature of the sii_tteme;nt 111aae by the ~etitfoner, it is ··

submiited'that the retraction was not done irdmedi~tely but was made only

after two days. The medical examination has been done by the Medical

,Superintendent as per the procedure and the itijuries which were founcl to be

on the [Link] of the petitioner are not of such a nature which might be

inflicted. upon a person after subjecting him to torture. The respondents have
• I

relied upcm the following judgments:-

,

(i). Abbas Khan Vs. Central Bureau ~f Narcotics; Criminal Appeal

· No. 101 Q/2005 decided on 141h Ji¥nuary, 2009.' I

[Link]!)n, 2211/2008 Page 4of25

 (ii)
0

. Ravinder 'Singh Vs. State of Mahqrashtra, 2002 (]) JCC 10S9. ·.

cm
(iii) Rehmntullah Vs. Narcotics Cont1:ol Bureau, Criminal Appe(ll
· No. 90 of 2005 decided on 18th Jul~, 2009.

(iv} Raj Kumar Karwal Vs. Kirpal Mohan Virmani, 1991 Cri. L.J.
97.

(v) Kanhaiyalal V.\·. Union of India, 2008 l AD (Cr.) (S.C.) 277.

. (vi) Ramesh Chandra Mehta v.~. Stat~:of W.B.,AIR 1970 SC 940 .

6. H _is also submitted that the respondent~ are not to be blamec;l for the
'delay in the disposal of the matter inasmuch :as on eac,h and every hearing

the respondents have been prosecuting the matter with due diligence. It is

1;1lso submitted that even if the case of the petitioner is accepted that it is the

case of rio ~vidence, yet the second ,condition µnder Section 37 of the NOP$
' '

· Actis required to be fulfilled, that is to say, th~ Court has to be satisfied that

the petitioner will not be _involved in future in similar nature of crime. ·

7. I have _considered the submissions made on behalf of the patties and

.. !

.. have perused the judgments cited by them. • In the case of Bal Mukund

(supra) ·relied upon by the petitioner, it has beep held:- I

·.... I
19. The prosecution case principal!ly hinges on the
· purported confessions made by thei respondents. The
.. learned Special Judge failed and/ or neglected to notice that
· the respondent No. · 3 had retracted ~i:s confession at the
'· earliest possible opportunity. He coJld have, therefore,
been convicted only if independent c6rroboration thereof
· was available. Admittedly, no contrab~nd was found from
.. his possession. He was prosecuted for entering into a
· conspiracy in regard to commission o~ the offences under
Section .8/.IB of the Act with the respo~dent Nos. 1 and 2.
Such conspiracy was not proved by the prosecution .. No
.evidence whatsoever was brought on rJcord in that behalf.

• I

[Link], 2211i2008 Page·s of 25

'
 . The High Couti, in our opinion, therefpre, rightly accepted
the contention of the said respondent, stating: .
12. As far as appellant Amritlal is qoncemed, he
was appn,hended only on the basis_ of the statement
made by the appellants Bal M1,1kund and Basantilal.
The only evidence available ~against him is his
confessional statement recorded under Section fil of I
the Act. M.R. Narvale (PW-7) has stated in his
statement that statement of Amritlal Anjana Ex.
P/24 was recorded by him'. The ,contents of Ex. P/44
have not been duly proved by the prosecution. The
so called confession has been retracted by the
.. appellant Amritlal. He cannot be convicted only on
the basis of Ex. P/24. Even the confessional
statements of co-accused cann?t form thf basis of
his conviction. His conviction is not based on the
evidence and cannot be sustainid.
20. For recording his conviction, •confession of the·
respondent Nos. 1 and 2 had been taken into consideration.
21. Mr. B.B. Singh would urge that the! statements made by
the respondent Nos. 1 and 2 purported to be in terms of
Section 6.7. of the Act were admissible against the co-
accused, Strong reliance in this behalf has. been placed on·
·· Naresh J. Sukhawani v. Union of India· AIR 1996, SC 5_22
wherein it was held: ' ' .
4. It must be remembered· that! the statement made
before the Customs officials :is not a statement
recorded under Section ill of the Criminal
Procedure Code, 1973. Therefore, it is a material
piece of evidence collected by Customs officials
under Section J..Q.8.. of the Customs Act. That
material incriminates the petitioner inculpating him
in the contravention of the , provisions of the
Customs Act. The material can ;certainly be used to
connect the petitioner in the confravention inasmuch
as Mr Dudani's statement clearly inculpates not only
himself but also the petitioner. ~t can, therefore, be
used as substantive evidence connecting the
petitioner with the contravention by expotiing '
foreign currency out of India. '11herefore, we do not
think that there is any illegality in the order of
confiscation of foreign currency and imposition of
penalty. There is no ground warranting reduction of
fine.
22. No legal principle has been laid! down therein. No
reason has been assigned in support of the conclusions
1

arrived at. If a statement made by! an accused while

. responding to a summons issued to i him for obtaining
· information can be applied against a co~accused, Section JQ
of the Evidence Act being not applicablp, we have not been
shown as to under which other provision thereof, such a
· -confession would be admissible for making the statement
, of a co-accused relevant against anothc;:r co-accused. If an
· accused makes a confession in terms· 9f the provisions of

· [Link]. 22H/2008. Page 6 of25

 the Code of Criminal Procedure or otherwise, his
\:Onfession may be held to be .admissible in evidence only
·.·. ii, terrns of Section 30 of the Evioence Act and not
bthe1wise. If it is mere·l~y· a statement before any authority,
the maker may be bound thereby but not those who had
been implicated the,rein. If such a legal· 11rinciple C\ln be
culled out, the logical corolla1y thereof would be that the
co,accused would be entitled to cross-examine the itccused
as such a statement made by him would be pr~judicial to.
his interest.
23. We may notice that in State (NC'Tofpelhi) v. N,avjot
. Sandhu Alias Afsan Guru AIR 2005 SC 3820, this Court
.' has laid down the law in the foll~wini t~rms: .
38. The use of retracted confession against the co-
accused however stands on a d1fferent footing from
the, use of such confession against the maker. To
come to grips with the law on tre subject, we do no
more than quoting the apt observations of Vivian
Bose, .J., speaking for a th1'ee,Judge Bench in
Kashmira Singh v. State of M.P. Before clarifying
the law, the learned Judge noted with approval the
obse1vations of Sir Lawrence Jenkins that a
confession can only be 1,1sed to "lend assurance to
other evidence against a co-acc;µsed.
The legal position was then stated thus:l(SCR p. 530)
Translating :these obsetvations :into <;;oncrete terms
they come to this. The proper way to approach a
case of this kind is, first, to marshal the eviden<;e
against the accused excluclirg the confession
altogether from <;onsideration and see whether, if it
is believed, a conviction could safely be based on it.
[f it is capable of belief independe11tly of ·the
confess1?n, then of course it is 11ot necessary to ca:11
the confession in aid, But cases may arise where the
judge is not prepared to act on. the other evidence as
it stands even though, if believed, it would be
sufficient to sustain a conviction. In such an event
the judge may call in aid the confession and use it to
lend assurance to the other evid~nce and thus fortify
himself in believing what witl\out the aid of the
confession he would not be prep!ared to accept.

39. The crucial expression used in Section 30 is "the

Court may take into consideratibn such confession"
(emphasis supplied). 'These words imply that the
confession of a co-accused cannot be elevated to the
' ' .

status of substantive evidence which can form the

basis of conviction of the co- a:ccused. The import
of this expression was succinctly explained by the
Privy Council in Bhuboni Sahu v. R in the
following words: (AIR p. 260)
The court may take the confession into consideration and
thereby, no doubt, makes its evidence ion which the court
may act; but the section does not say ithat the confession

•[Link]. 2211/2008 Page 7 of 25

 amounts to proof. Clearly there musr be other evidence.
· · · . Th1;1 confession is only one element in :the consideration of
all the facts proved in the case; it can be put into the sqale
and weighed with the other evidence.

8. It would also be relevant to take note of some of the obs~rvations

mad~ in :the aforesaid jud~ment, which deals with the purport and reasoning

as to whaf$ection 67 of the NDPS Act means.. The relevant paraijraphs are

reproduc~d hereunder:-
25. Section .6..7 of the Act reads as un~er:
67 - Power to call for information, etc.
Any officer referred to in Section 42 who is
authorised in this,behalf by the Central Government
or a State Gove1T1ment may, dt,1ring the course of
any enquii1' in comiection with the contravention of
any provisions of this Act,--

{a) call. for information from any person for the

purpose of satisfying himself whether tlwre has
been any contravention of the provisions of this Act
or any rule or order made thereunder;

{b) require any person to produce or deliver any

docum'ent or thing useful or relevant to the enquii}';

(c) examine any person acquainted with the facts

and circumstances of the case.

26. How and at what point of time the said provision was
invoked is not known. :

The situation in which such purported statements have been

made cannot also be lost sight of. The purported raid was
conducted early in the morning. A large number of police
. . · officers including high ranking officers were present.
· · _Search and seizure had been effected .. According to the
: prosecution, each c;if the respondent Nos. l and 2 were
found to be in possession of IO Kg. of narcotics. No
information was sought for from tt-lem. It is
doubtful
· .whether they had made such statements:on the road itself.
· 27. Exhibits 20 and 21 categorically show that they were
interrogated. If they were interrogatedlwhile they were in I
. custody, it cannot be said that they h~d made a voluntary
· statement which satisfies the conditions precedent laid
down under Section f,7 of the Act. We; in the backdrop of
the aforementioned events, find it difficult to accept that
.. such statements had been made ~y thetp although they had
, .. not been put under mTest. As the authtjrities under the Act

~a [Link]:i. _2211/2008 Page 8 of2S

 . can always show that they had not formally been arrested
l:iefore such statements were recorded, :a holistic apprQach
.for the aforementioned purpose is necessary to be tak\:ln,
28. This Court in D.K 13asu v. ~ta;!![Link] '¥est 13epg,gJ AIR
1997 SC 610 laid down the law that ih person in c.1,1stody
is subjected to inten·ogation, he inust be informed in clear.
and unequivocal terms as to his right t9 silence. This nile
:was also invoked by a Constitution .eench of this Court iri
State of Punjab v. Baldev Singh AIR 1999 SC_ 2378,
wherein it ;.,as held: ... ' . . L ' ; ' ' . ' I

28. This Co1,1rt cannot overlook the context in which

the NDPS Act operates and particularly the factor of
widespread illiteracy among persons subject to
investigation for drug offences. It must be borne in
mind that severer the punishment, greater ha.s to be
the care taken to see that all the safeguards provided
in a statute are scrupulously followed. We are not
able to find any reason as to why thfi empowere4
officer should shirk from ·affording a real
opportunity to the suspect, by intimating to him that
he has a right "that if he requires" •to be searched in
the presence of a Gazetted Offiber or a Magistrate,
he shall be searched only in thi;tt manner. As Page
2956 . already observed the cdmpliance with ·th'e
procedural safeguards contained in Section ~ are
intended to serve dual purpose •, to protect a person.,
'
against false accusation and frivolous charges as
also to lend credibility to the 'Search and seizure
conducted by the empowered officer. The argument
that keeping in view the growing drug menace, an
insistence on compliance with, all the safeguards
contained in Section ~- may result tin more
acquittals does not appeal to us. If the empowered
. officer fails to comply with. tpe requirements of
Section iQ and an order or acquittal is recorded on
that ground, the prosecution .must tfiink itself for its
lapses. Indeed in every ,case I the end result is
impo11aht but· the means to achieve it must remain
above board. The remedy cannot be worse than the
disease itself. The legitimacy ,of judicial process
may come under cloud if the Court is seen to
condone acts of lawlessness conducted by the
investigating agency during se~rch operations and
may also undem1ine respect fori law and may have
the effect of unconscionably . compromising the
administration of justice. That carinot be permitted.
See also Noor Aga v. State of Punjab and Anr. 2008
(9) SCALE 68 l. . .
· 29. The com1 while weighing the evidehtiary value of such
a statement cannot lose sight of ground realities. ·
· Circunistances • attendant to·· making of, such statements
, ·should, · in our considered opinion, be· taken into
consideration. . .

[Link], 221V2008 Page 9 of25

 30. Concededly,·· the Act provides for · 'a stringe11t
·_ pµnishment. We, for the pul"pose of this case, shall pro9eed
, on the assumption, as has been contended by Mr. Singh,
. that the prosecution need not examine any independent
witness it1thot1gh requirements therefor· cannot be
minimized. See Rites_h Chakeravartx v. Stats; of ~iid~;.:a
Pradesh JI 2006 (12) SC 416 and NooriAga ([Link]).
[Link] a statute confers such dra~tic powers and sei::.ks
-to deprive a citizen of it" Iibe1iy for nQt less than Jen years,
and making stringent provisions for grant of bail,
scrupulous compliance of the statutory provisions must be
insisted upon. While considering a ca$e of present nature
where two persons may barely read and write Hindi, are
said to have been used ,as carrier cot;ttaining material of
. only 1.68% of narcotics, a conviction, in our opinion,
should not be based merely on 'the ~asis of a state1rient
made under Section §1. of the A-ct without any independl;'lnt
·· corroboration piuiicularly in view of the fact that such
statements have been retracted.
·. ·. 32. Mr. Singh placed strong reliance upbn a decision of this
Couti in A.K. Mehaboob v. Intelligence Officer. Narcotics
Control Bureau [Link]. {10) sec i03. The Ben~h rep~lling
the arguments that (i) the statement niade by the accused
had been retracted; (ii) the appellant informed the
Magistrate that the said statement had been coaxed out
· from him; and (iii) the said statement was not corroborated,
opined: · .
5. There is nothing to indicate that Exhibit P-8 had
been elicited from A-2 by any: coercion, threat or
. force and, therefore, the lear11ed Single Judge of the
High ,Court had spurned do'Yn tha~ contentio1~.
Regarding the complaint allege<:I to have been ma~e
by the appellant Naushad on 11-3-1994, w~ have
perused it. His case therein, was that he offered
himself to be a witness in the case and some reward
was offered for it. It was on the said offer that h~
agreed to sign the said statement. ...
There exists a distinction between a case where the accused
.himself had stated that he had made [Link] the
belief that he would be rewarded and a case. where such
purported confession had been obtaineq upon interrogation
_by High ranking police officials .
.33. Yet again in M. Prabhulal v. Assistant Director•
. Directorate of Revenue Intelligence All\ 2003 SC 4311, the
retraction was made only when the _accused was being
·· examined under Section ill of the i Code of Criminal
. Procedure. No credence was given to such a retraction
made after such a long time. This: Cou11 taking into
consideration the entire factual matrix involved in the case
_ opined that the confessional statement bould not be held to
· . be involuntary and they were volunta1ilty made. Such is not
·- the case here.
We have pointed out several circumstances to show that the
accused had been put under interrogation.

[Link]. 2211/2008 Page 10 of25

 34. Reliance has also been placed on I<,a~1h,ai,xal~I v. Un}()n
of India AIR 2008 SC 1044. In that case, no question w~
p~t. in cross-examination ·to the police officer (PW-9).
whose evidence ha~ been relied upon by the High Court
· and, th1,1s, his evidei1ce was stated to be ¢orroborative of the
. ~tatement made by the accused.

· ·; However, it is interesting to note that in Fra_n~is _St.anly

Alias Stalin V. Intelligence Officer,! Nan.;otic Control.
Bureau, Thiruvana11thapura111 (2006) '13 SCC 210, this.
Court opined: · · · ·· · · ···
15. We are of the opinion that whife it is t111e that a
qonfession made before an officer of the
Department of Revenue Intelligence 1.,mc;ler the
NDPS Act may nbt be hit by Se~tion 2..2 in view of
the aforesaid deqisions, yet sui;li a confession must
be subject to. closer scrutiny thaii a confession made
t.o private citizens or officials! who do not have
investigating powers under th~ Act. Hence the
alleged confession made by the same appellant must
be subjected to closer scrutiny than would otherwise
be required.
16. We have carefully pe11,1sed the facts of the
present case, and we are of the opinion [Link] thi;
evidence of this pa1ticul1:1r <;ase iit would not be safi
· to maintain the conviction of the appellant, and· h~
must be given the benefit o.f i·eas/:mable doubt.
35. In Mohte~ham Mohd .. Ismail jv. Spl. , qire~tor,
.. Enforcement Directorate and. Anr. 2007 (8) SCC 254, in a
. . case involving the Foreign Exchange Regulation Act, this
·· ·. Court held:
19. Apart therefrom the High Cou1t was bound to
take into consideration the factum of l'etraction of
the confession by the appellant lt is now a well-
settled principle of law that a <;onfession of a co-
accused person cannot be trel'lted as substantive
evidence and can be pressed into service only when
the court is inclined to accept ,other evidence and
feel~ the necessity of seeking (or an assurance in
.. .. support of the conclusion deducible th~refrom... .
· ·. 36. In Ravindrat] Alias John v. Superintendent of ¢ustoms
2007 (6) sec 410 1 this Court opined:
19 .. ,The confessional statement of a co~accused
could not be used as substantive evidence against
the co 0 accused.
37. In Noor Aga (supra), this Court h~ld that whether the
confession was made under duress or coercion and/ or
voluntary in nature should be considered having regard to
.the facts and circumstances of each case,'. It was opined:
· 102. Section 25 of the EvidenceiAct was enacted in
the words ofMehmood J in Queen Empress v.
Babula] fLR (l 884) All. 509 to put a stop to the
extortion of confession,. by taking away from the
police officers as the ac;lyantage of proving such.

[Link]. 2211/~008 Page 11 of25

j
 extorted confession during tme; trial of accµsed
persons. It was, therefore;,. enacted to subserve a
high purpose.
'
113. Even othe1wise Section 1388 of the 1962 Act
rnust be read as a provision containing c;ertain
important features, namely:

(a) There should be in the fir~t instance statement

made and signed by a person i before a competent
custom official.

(b) It mui,t have been made during the course; of

enquiry and proce;edings under the Customs Act.

114. Only . when these things are established, a

statement made by: an accu~ed would becom(:
relevant in a prosecuti:on under the Act. Only then,
it tan be used for the p'urpose of proving the t11Jth of
the facts contained therein. It deals with ·another
catego1y of case which provides for a further
clarification. Clause (a) of .Sub-section (1) of
Section 138B deals with one type of persons and
Clause (b) deals with another. The Legislature
might have in mind its experienc;e that sometimes
witnesses do not support the prosecution case as for
example panch witnesses and only in such an event
an additional opportunity is afforded to the
prosecution to criticize the said witness and to invite
a finding from the court not to ~ely on the assurance
of the court on the basis of the statement recorded
by the Customs Department ana for that purpose it
is envisaged . that a person may be · such whose
staten,ent was recorded but whjle he was examined
before the court, it arrived ati an opinion that is
statement should be admitted i in evidence in the
interest of justice which was evidently to make that
situation and to confirm the witness who is the
author of such statement but does I
not support the
prosecution although he made a statement in terms
of Section 108 of the Customs Act. We are not
concerned with such category of witnesses.
Confessional statement of an , accused, therefore,
cannot be made use of in any 111anner under Section
138B of the Customs Act. Ever othetwise such an
. evidence is considered to be of weak nature.
.. ·. It was also held that sanctity of the irecove1y should be
ensured. • . .., .
'38. We, therefore, in the facts and ci'rcumstan~s of this.
· case, are clearly of the view that the p~rported confessions
made by the res·pondent Nos. l and 2 could not in 'absence
of other corroboration form the basis ofconviction.

·9. Similar view is taken in the case of Fraricis Stanly (supra), wherein it

[Link]. 2211/2008 Page 12 of 25

 hasbeen held:

4. A perusal of the f11cts of the case wovld show that then,

is _no allegation that the appellant hir)lself was foun~ in
possession of any narcotics. The allegatjon was only that he
· handed over some narcotics to accus~d No. 1. The only
evideilce against the appellant is the re~racted statement of
. accused No. I am;! the appellant's own r~tracted confqssion.
5. In Clwnampara Chellappan v. State of Kerala, AIR
1979 SC 1761 it has been held (in paragraph 4) that "it is
· . ~qually well settled that one tainted evidence c;annot
.co1Toborate another tainted evidence· because if this• is
:allowed to be done then the' ve1y 11ecessity of con'oboration
ls frustrated" · · ·

· In paragraph 5 of tlie same judgment iliis Court relied on a

decision in Piara Singh v. State of Ptinjab, AIR 1969 SC
· 961 in which it was observed/. i
· An accomplice is undoubtedly ~ competent witness
under the Indian Evidence · Act. There can be,
however, no doubt that the very fact that he has
participated in the. commission of the offence
•. introduces a serious 'taint in his evidence and Courts
are naturally reluctant to ac:t on such tainted
evidence unless it is corro~orated in) material
particulars by other independent evidence.
Thus, it appears from the above decisidn that there is sonie
taint in the evidence of an accomplice! and the reason for
this obviously is that an accomplice's i evidence is looked
. _upon with suspicion because to protect himself he may be
' inclined to implicate the [Link]. ·
6. We make it clear that we are not of the opinion that the
1

evidence of the accomplice ca,n never be relied upon, since

· such evidence is admissible under Section 133 of the
· •. Evidence Act. However, Section has to be-;:;d along
· · y,rith Section ll4lhl of the Evidence A~t, and reading them
•
· together the law is well settled that the rule of prudence
I

requires that the evidence of an !accomplice should

ordinarily be corroborated by some qther evidence vide
Suresh Chandra Bahri v. State of Bihar AIR 1994 SC
2420.
• . 7. Leamed Coui1sel for· the respondent relied· upon a
·.. decision of this Court in M. Prahhulal v. Assista,it
Director, DirectiJrate of Revenue Intelligence AIR 2003
SC 4311, wherein it has beet, held that if the confessional
. statement is found to be voluntary and free from pressure, it
can be accepted. This is no doubt true, put it all depends on
'the facts and circumstances of each ciise and no hard and
· fast rule can be !aid down in this cdnnection whether a ·
paiticular alleged confessional statement should .be
. accepted.
· 8. Learned Counsel for the respondent then relied upon a
. decision of this Court in T. Thomson' v. State of Kera/a

[Link]'n: 2211/2008 Page 13 of 25 1

 . and Anr. 2002 (9) SCC 618, wherein it was held that the
confession in question was volunta1y. Iri this connection we
reiterate that it all depends on the facts and [Link]
,of each case, and no hard and fast 11,1le ~an be laid down as
to when a confession can be regarded as voluntary and
· · when it should not. i
9. In State (NCT of Delhi) v, Nav,iot !Sandhu @Afasqn
Guru AIR 2005 SC 3820 this Cou'rt observed : · .
· · A retracted confession n,ay form the legal basis ofa
conviction if the court is. satisfied that it was true
and was voluntarily made. But jt has been held that
a court shall not base a coniviction on such a
confession without co1Toboratio11 .. It is not a rule of
law, but is only a rule of prud:ence that under no
circumstances can such a cdnviction be made
without corroborati~~. for a • court may, in a
particular case, be convinced ofthe absol\lte truth of
a confession and prepared to act upon it without
corroboration; but it may be laid down as a general
rule of practice that it is unsafe to n;ily upon a.
, I confession, much less on a retracted confession,
unless the comt is satisfied i that the retrac,t;:d
confessioi1 is true and voluntal'ily, made and has
· been corroborated in material partic;ulars.
' .It is true that in the present case the confession was \Tlade
by the accused not before an ordinary police officer, but
· before an officer, under the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hel·einafter referred to
. as 'NDPS Act') who is an officer of ithe Department of
Revenue Iiltelligence, and it is held by this Cou1t in Ra,i
_Kumar Karwal v. Union o_f India anlOrs. AIR 1991 SC
45, that such a confession is not hit by Section 2.5. of the
···Evidence Act.
)0, We are of the opinion that while it is true that a
confession made before an officer of!the Depa1tment of
Revem,.1e Intelligence under the NDPS Act may not be hit
·. by Section in view of the aforesaid decisions, yet such a
· confession must be su~ject .· to clos¢r scrutiny . than a
confession made to private citizens or officials who do not
have investigating powers under Act. i Hence the alleged
confession made by the same appellant must be subjected
to closer scrutiny than would otherwise be required.
Jl. We have carefully perused the factsiof the present case,
and we are of the opinion that on t~e evidence of this
particular case it would not be safp to maintain the
· conviction of the appellant, and he hmst be given the
. benefit of reasonable doubt. We make it clear that we are
not laying down any general principle in this case, and are
,deciding it only on the particular facts imd circumstances of
. this case. Hence, this case cannot be a jprecede1it for other
qases which may be on their own facts. We are infom1ed.
··that the appe,llant .has already unclergpne more than six
· years' imprisoriment. ·

BaiLAppn; 22'11/2008 Page 14of25

 >. 4 . 12. On the facts and cin;umstances of the case, we allow
· this appeal and set aside the orders of the courts below. The
. appellant who is in jail shall be set free forthwith unless
··required in connection with some [Link].

to. Insofar as the judgments cited on behalf of the respondents are

concerned, these have been taken note of by the Apex Court in the cases of

Bal Muk11'n.d and Francis Stanly {.ntpra). Insofar as the other judgments

cited by the respondents are concerned, it may be observed that:

. -· (i} ·· In the case of Ravinder Singh Vs. State of Maharashtra, 2002

. -, : ' ,· :• ...
. (2) JCC 1059, the only thing which has been, held is tha't if the .
confessional statement of the accused is vohmtary and truthful,

it would not require any corroborc1tion for conviction.

(ii} .· In the case of Hem Raj Vs. State, AIR 1964 SC it is held that

. • .mere bald assertion by the prisoner that he was thryatened,

t_ortured or that inducement was offered to him, ,cannot be '

. accepted as tme without SOfl)ething more,

(Hi) In the case of Ramesh Chander Mehta Vs. State of West Bengal,

· AIR 1970 SC 940 it has only been stated that the Customs

Officials are not the member of pqlice force.

(iv) In the case of K.I. Pavunny Vs. Assistant Collector (1997) 3

·'
\ ·. SCC 721 · it has been held th~t the confessional, statement , ·

subsequently retracted, if on facts found to. be voluntary and

.· truthful, can form the exclusive basis for conviction. However

in that case the Apex Court was pleased to further observe that

[Link]._2211/2008 Page 15 of25

'
..
 · .· · if the court is satisfied from the 1;:vidence that it was voluntary,

then it is required to examine whether the statement is true,, If

•the cou11 on examination of the evidence find that the retracted

confession is true, that part of the inclupatory porticm coulcl be

·· ... relied upon to base the conviction. However, pnideµce and.',

I ' ' I ,

practice requires that the Court would seek· assurance in ~etting

-· corroboration from other evidence adduced by the [Link].

11. Thus, the following conclusions can be drawn on the basis of the

observations made by the Apex Court in different judgments (supra):-

· . (i) . The DRI officials/custom officials can record statement i,mc:l~r

. Section 67 o.f the NDPS Act or under Section 108. of the

Customs Act during the ~ourse of enquiry with a vi~w· to

•· elucidate information. about the commission of offence in those

.· acts, which may be permissible despite the bar created by

Section 25/26 of the Evidence Act. However, such power is not

I

to cut short the process of· investigation by recording

confessional statement in:;tead of collecting independent

...
.evidence.

{ii) Jf the statements are m the nature of confession, prudence

requires that such statement shall be corroborated by an

"independent evidence. However, if those statements are

retracted and it is alleged that they were not voluntary then the

. ·,

,[Link]. 2211/2008 Page 16 of25

 · onus to prove that there was no retraction or the statements

were voluntary would be on the prosecution.

· (iii) ·... Moreover, the purpose of recording statement under Sc,;:p(ion 67, .

of the NDPS Act is not to record confession bµt only to

· elucidate information. Thus if the prosecution is already in

.·possession of evidence about the involvement of the acqused,

then recording a statement under S<tction 67 in the nature of

·.· confession would certainly b~come doubtful and if sµch a

·· . :statement is retracted, then the said statemlnt cannot be used in

evidence against the accused without any • independent

.. corroboration.

(iv) The statement of cn~accused persons recorded,under Section f.,7

.·. of the NDPS Act also cannot be used unless they are

corroborated by the independent evidence.

.. .'

· 12.. · lrt the prese~t case it has been fairly conceded by learned counsel for

the respondents that except for the statement made by the petitioner u~der

Sectiori: 67 bf the NDPS Act, the only other evidence is the statement of co-

accused and the statement of one Ravi Bhatia,who appeared as PW-4 and

has not supported the case of the petitioner. Even if his statement1recorded

.under Section 67 of the NDPS Act is taken into consideration, the said .

. statemeritonly goes to show that the [Link] in question was left with him,'

for repairs and not for using the same for any illegal purpose. Thus, this

[Link]. 2211/2008 Page 17 of 25

' ..

statement'wiU not corroborate the statenwnt of petitioner under Section 67 of

the NDPS Act which, as stated above, was retracted and was not a voluntary

.statement as also the statements of the c;o-accused persons. In this regard, it

woulcl also pe appropriate to take note of the contents of the application

moved by the petitioner before the Additional Sessions Judge, Patiala ijoµse
' '

Courts/ New· Delhi, which for the sak~ of reference is reproduced

· he1·et1nd~r:.:,

' .·In tli.e Hon 'ble Court of Shri Lal Singh, ASJ Patiala House Courts, New
. Delhi .

S~b: Retraction of statement before ORI on 20 August 2004

ORI Vs,. Ravinder Singh, Roshan Lal & Others
. I am innocent and I have been falsely implicated by the DRI in a
NJ)PS case.
I was moved from the place of my po~ting i.e. Gurdaspur on 18
Au~.· 2004. During the transit period from 18 {\ug. 2004 to 20 Aug. 2004
Le.'from SHO BSF Gurdaspur to DRI office, New Delhi. Nothing was
· ir1foq11ed to me i.e. purpose of journey, duratioh of stay etc. 'and I was not·
,allowed to make any phone call nor I was•allo~ed to speak to anybody._
· I was tortured physically as well as mentally by the office'rs ofDRI
in their office and they also compelled me to, write a statem'ent of their
· t_hoice. The said statement was written as per the dictation by the officers.
of [Link] and one of the officer was Mrs. Sanyogita Mishra. It was not my
voluntary' statement. I am having torture injuries on my body. I do not
· know anything with regard to the drugs. Nor I have handled the same at
any point of time. ·
1
. > It. is a false case and I have been impl icated falsely due to some
· conspir~cy of a bigger magnitude to save some real culprits. The DRI
·omciers also obtained my signatures on many blank sheets of paper.
. . . I wanted to plead my innocence before the Hon'ble ACMM,
before _whom I was produced on 21 •1 August, :2004 but the DRI officers
[Link] to implic'lte my family members if I speak to the judge
regai·ding to1ture and my i11noce11ce, so 1 could :not communicate the same
to the Hon'ble Judge fearing my life and further false i111plication ofn~y
family members. ·
.Now, I 1·equest the Hon'ble Magistrate to kindly look into the
matter and save me from the false case.
. .· The said statement before the DRI may specifically be treated as
retracted.
pate : 04 Harpreet Singh Bahad

[Link]. 2211/2008 Page 18 of 25. ,

 ,.

i
S/o [Link] Singh Bahad
Jail No. J, Tihar, New Delhi
LTl ofHarpreet Singh Bahad
T1-u·e copy

This statement has been made before thy Visiting Adv0<;ate, l;egal

Aid $ervic¢Authority, Central Jail No. 3, Tihar, New Qelhi.

13. Hwould also be appropriate to take note of the MLC of the petitioP:er

detailing the injuries found on the person of the petitione;:r when he was

. medicallyexamined:-

"With due respect I want to State that iibove-mentione~

. individual entered in Central Jail No.3 on 21.8.2004.

As per murtaza record (first medication examinatidn in jail)

dated 21.8.2004. There was "Bruse dislocation of back with
· swelling on sca1ial region with tendernous and patient has
difficulty in sitting". (photocopy enclosed) This is for your
information please."

The above-quoted application and MLC were then forwarded to the

. . . .
ACMM concerned.

14. · It would also be .important to take note1 of the complaint made by th!;l

petitioner· to the Chaini1an; National Human Rights Cdmmission, Si;trdar

Patel Bhawan, New Delhi, the relevant portion of which is reproduced

hereunder:-

On reaching the ORI HQ, I was produced before an officer who

without any foreword; threatened me to co-oBerate with them or face
tortu're. I
·. Immediately after· that, I was taken to another rooll') 'where four
' person·s' were present. On entering the room I was asked to sit on the

.. [Link]; 2211/2008 Page 19 of25

 floor; as I hesitated I was suddenly slapped, abused and pushed down
to the floor. I was shocked as I had no idea as to what was happening
·. and why'?

Then, one of the interrogators s'aid that, you are drug trafficker and
you s_h◊uld cohfess this and write a statement!as per their dictation. I
was .shell-shocked and reqt1ested them that I am I
innocent and do not
know anything about drugs etc. Hearing this, all get berserk and
sta,ted kicking me. I started screaming in pain and fear. Then one of
them proposed, "IS KE MUH MEIN J<,UCH DALO". My
handkerchief was put in my mouth and I was askecl to take-off my
clothes. I was naked, they tied my hands behind and made me t0 sit on
the floor, then they called two more men and mercilessly started out
stretching my thighs, l was screaming and sweating in pain. I was
kicked in my groin, my hair was pulled and I was punched everywhere
o·,; my body. I sta1ted crying; seeing this they took the hahclkerchief
out of my mouth. I begged befqre them to leaye me. Hearini this one
- . ·_. of then1 said " PEHLE !;{AMARA KEHN A, M,[Link]" I asked the.m
what shall I do'? Then they brought few blanki papers and asked me to
sign on them, now I could not afford tci say "no". I signed on the
blank_ papers.

One of them, who appeared to be the senibr said, "GOOD AB JO

LIKHVATE HAIN CHUP-CHAP LIKH DO,.NAHIN TO CASE TQ
HUM BANA HI LENGE AUR ;TERE MA'.A-BAAP AUR BIWI-
BACHON KO SADAK PAR LA DENGE".
I
'· I had no courage to face further torture and ridicule. So, I agreed
under duress. I was asked to put on my clothes and then I was taken to
:i~dy officer, who initially asked me to writ6 details of my family,
.. education, career etc. and then dictated an episode regarding some
·drug carriage from Kathua to Delhi.
. j .

·'Atl~r dictation was over, I was given an arrest meiJo; I was told
that I am arrested on charges of drug traficcking. I statted crying and
begging them to have mercy and do not implicate an innocent in
f~bri~ated false case. ·

15. There· is another aspect of the matter that the summons issl;led under

Section 67 pf the NDPS Act goes to show that 'the first summon was directed

to be issuedto the petitioner and the two other summons were issued to

·accused Nos. 1 a~d 2 . 'but the petitioner was examined later on, and
. .

. obviously [Link] in the custody of the DRI officials right from the time he

was asked to come and make the statement. n~e so-called information about

I [Link], 22i~/2008 Page 20 of 25

. . ,· . .·

..·... the involvement of the petitioner was av~ilabl~ with the ])RI ev!lln befqre hi~

· examinaticm as it is the case of the r(llspondents that accused Nos. 1 and Z in

their statements under Section 67 of the NDPS Act implicated the petitioner
'
. also andth,~refore, it 9annot be.~aid that he was not in the custo(iy of th(? .ORI

· .officials
.,. . till
.. . .·-· his statement was recorded under Section
,,, " '' -
67 of the NOPS. Act.
' ' --- ,,

Mo~e s9, th~ case of the prosecution rests upon th€: s{ateriwnts of a9ctised

Nos'. (a1,1el 2, who have admitted before the trial qourt that they h~ve com~

· to k11ow a,1:>[Link] the implication of the petition~r in this case only after their
stateme~ts .· were recorded. The question of issuing summons to the
. .
petitioner earlier to accused No.1 and 2 falsifi<rs this assertion of officials of

DRI and proVes the contention of learned counsel for the petitioner that the

:petitioner was throughout. in detention anti the so-called. confi;ssional

. -· .
•statemerit,,~hich is something more than what is the purport of Section 67 of, '

. tlw NDPS Act is not voluntary. Therefore, the statement of the petitioner

cannot be sa_id to have been recorded voluntarily. Thus, if a state~ent is

recorded u~der Section 67 of the NDPS Act and is thereafter retracted, the

said statenient unless co1Toborated by any independent evidence; it cannot

· become the basis of conviction and it is to take note that at what stage the ,

statem~nt has been recorded. It is to be further seen whether such statement

• , • • I

is merely aformality for recording a confession that is to say for calling <!J1
· [Link]<,m when the same is already available with them. It appears that the '

· DRl/Cµstom Authorities decided !o cut short the process of investigation by

. invokin~ Section 67 of the NDPS Act inasn;mch as instead of collecting

' ' . · .. ,, .·
': ' ; . ,: '
· B;[Link]. 22H/2008 Page 21 of25
 evidenc~, they wish to rely upon the statement of the accused person, who

obviously .might have been compelled to mah such a statement as is the

~llegi,[Link](}n mijde by the petitioner in this case. Thus, the .question as to

whether the statement was record~d voluntarily or was reqorded under

duress also be9omes a matter of evidence and therefore, whenever such an

allegation is made, the authorities cannot simply sit back and rely upon the

so-called confessional statement instead of collecting independent evidenc;e.

-16. Insofar as the submissions made by counsel for the respondents that
.. . . -

· Section· 3:j has two requirements, that question will arise only
• . . ' • • • • t:.
if the first
i

requfrei'lletit is substantiated i.e. there is evidence. against the 'petitioner that

he committed the crime which for the reasons stated above is extremely
'
doubtful in view of the inadmissib~lity of statement of co-accused in the

absence [Link] and in view of the retraction of petitioner c;:,f the

.·· [Link] under Section 67. The said statement has not been recorded

to get a new information but it is recorded solely for the purpose 9f

· recording 6011fession which, as stated above, is the purpose ~f Section 67 ..

· Moreover;· there is nothing on re~ord which may go to show that there is .

·'likelihood of the petitioner involving himself in a similar crime in future

.
~fter remaining
..
in jail for a period of more than five years. In any. event,
'

. '

there. i~_:nd procedure available with this Court to ensure that the petitioner

· may o'r may not indulge in similar crime. There is no material placed on
' .

.· record by the respondents to show that there .is likelihood of the petitione'r

being involved in similar case or the petitioner may commit a similar crime

[Link]. 2211/2008 Page 22 of2S

 .· on the basis of intelligence available with tlwm but no such intelligence has
been shared by the respondents with this Court. The only thing available

with this Cqurt is that it can direct the petitioner not to involve, himself in a

similar crime in future and in case any violaticm takes plac<:;, the respondents

will naturally be at liberty to move an application for cancellation of the l?ail

of the petitioner immediately .

. 17. It will also be important to 'take note of the judgment of this ¢ourt 'in'.

· the case ofKama[jeet Singh v:~. HK.P~ndey (Jntelligen~e Offic'er, NCE),

Bail· Application No. 2338/2004 decided on 04.03.2005, when; similar

objections were raised by the respondent. In that case by relying l,lpon

Section 37 of the NDPS Act, the following observations were made:-

11. The sum total pf the arguments of the learned counsel for
the State based upon the afoi·esaid [Link] is that once
[Link] is established, the presumption under Secticm 35
and Section ~.4 would come into play and the Court ought n~t
. to overlook the confessional statement of the petitioner, nor
should the underlying object of Section 37 as indicated in the
I
case of Babua alias Tazn,ul Hossain (supra), be ignored.
· Accordingly, he submitted that the petitioner, who had made a
confessional statement and admitted th~ recovery of the heroin
and opium ought not ,to be released on bail. The learned
• counsel for the [Link] inade a further argument which only
needs to be stated to be rejected. This argument was that once a
' ' '

charge is framed, in view of Section 37 of the NDPS Act, bail

shou Id not be granted. In fact, si nee he~ was adamant about this
. submission, I had asked the learned counsel to produce one
· precedent which supported his contention. He was unable to do .
so.

15. Of course, these are all materials: which will have to be

•.· · gone into at the stage of trial. However, when an application
for bail is under the consideration of this court and the rigours
.of Section 'l!l of the NDPS Act are attracted, it is incumbent
1
·. upon this court to examine as to whether there exist or do no

·. Bail,Appn; 2211/2008 Page 23 of 25

 exist reasonable grounds for believing that the petitiom;r is
guilty of the offence charged. This consideration has to be on ·
the basis of the materials available on the date on which the
application for bail is considered. Moreover, the satisfacti9n
recorded by the court at this stage is ~nly a prima facie view
and would not affect the consideration of the case by the trial
. court.

16. Looking at th~ entire factual material, as indicated abcivy, it

: does appear that apart from the so-called confessional
statement and the admission that one packet was n;cover¥d
from under the seat on which the petitioner was seated in the
said Maruti 800 vehicle, there is no c:,ther evidence avail1,1ble
with the prosecution. The so-called cqnfessional statement, at
this stage, does not appear to me to b:e a confession at all. In
·.. fact, the staten1ent discloses that the petitioner did not know of
_the contents of the packet.

17. This being the case, it does appear that the petitioner was
· not in conscious possession of the saiq contraband. thereforee, I
· _I am satisfied that there are reasonable grounds for believing
. that the petitioner is not guilty of the offences for which he has
· been charged. ~s regards the question as to whether he is likely
to commit any offence while on bail, no circumsta~ce has'been
. brought to my notice which would indicate that there is such a
.. likelihood. It is also not the case of th~ State that the petitioner
.has beeri involved •in any other NDPS related pses. In this
view of the matter, the petitioner is directed to be released on
bail on furnishing a personal bond in' the sum of Rs.50,000/-
with two sureties• of the like amount to the satisfaction of the
'Concerned trial court.

. The application stands disposed of.

18. In the case in hand, the situation is worse because nothing has been
' . .. . .
recovered from the petitioner. .The recovery of contraband is from accused

Nos. l and 2, · It is only on the basis of their statements that the petitioner is
sought to beimplica_ted. Insofar as the statement of petitioner under Sec;tion

67 of the NDPS Act is concerned, as stated above, he has already retracted

the sai_d state111ent and in these circumstances,, unless and until the statement

. is corroborated the conviction may or may not take place. Thus, the

[Link]. 2211/2008 Page 24 of 25

 petition(:lr is.·entitled to be released on bail. 'Accordingly, I dire9t that the

.. petitioner
,. ' . . . .
be relt,,ased
.
on bail on his fumishin$ bail bond in the sum of Rs. 1
.. .. - ·- ~-
~. ·Iakh (rnpe,~s one lakh only) with two sureti;es qf the like an101,1nt to th~

satisfaction Qf the trial court subject to the condition thlt he will not hamper

the pr()gress of the case and would not involve himstilf in similar activities

and would deposit his passport with the respondents and will report to the

local office of the ORI once in every month.

19.. The petition stands disposed of. Pendlng appliqations, if any, shall

J:lls9' stand disposed of.

20. However, nothing stated herein would cause any aspersions 6n the

merits of the case pending before the ACMM.

MOOL CHAND GARG, J.

. .September 23, 2009
. -de

[Link]. 22ii/2008 Page 25 of ZS

 . :r;N Tl;IE SUPREME GOURT 0F INQIA
·tRIMJNA~ APPEL~AT~ JVAISPI~TIQN

MOHAMMED FASRIN ~PPELLANT(S)'

VERSUS

. ' . $TA!!;' REP.··. BY THE INTELL,IGENCE OFFI(;ER Rl;~PQNQe:NT($}

J U D G M E N T!

DEEPAK GUPTA; J.
~ l :. J., H l , .. ' . . , .

This · appeal by the accused is, directed agr;tinst the

j1,1(Jgment dated 19.02.2008 of· the Madras High CQ1,1rt
· · Wtiereby it .i-~pheld the judgment dat!ed 16 .12. 2~05 of the

[Link] and sessions Judge, ·Madurai acti~g as the '

special · C'ourt for Narcotic Drugs and Psychot rqpic

. substances Act, 1985 ( NDPS Act) cases and . convicted the

accused [Link] with three others for having committed

offences:unde~ the NDPS Act. As fa~ as the appellant is

.. concerned.,· tie was convict,ed for hav~ng c~mmitted offen¢~s,:,

under secd.o.n S(c) read' with 29, 2:JJ and 23(c} and 27(Al
of the NDPS Act and apart from that appellant had

committed· t:he·. offence· pLmishable un~er Section S{c} 'read

with 27(Al of the Act and sentenced to undergo rigorou$

1
 impri~onment for a perio~ qf 15 ye~rs and to pay fine' of
. .
R$.1,~e,ee~1~ and .;in default of payment to undergo simple
impri~onment for qne year. Offence: under section 27A of
the Act r~lates to punishment fbr fin~ncing illic;it
traffic·an~.-harbourin~ offenders an~ reads a.s fQllqws:
I

27A. PtH1.i,.shment for financing ~!licit traffic

and. harbouring offenders.- Whbever indulges in
.. financing, directly or indirectly, any of t~e
activities specified· in sub-c;Lauses (i) to (V)
of cl~use (viiia) of [Link] '.2 Qr harbQl!rs c;tny ·
per~on engaged in any of t~e aforementioned
act.;ivities, shall be punisha~le with rigorou~
imprisonment for a term which :shall not t;>e les$
than ten years but which· may. extend to 1;wenty
years a·nd shal;t. also be lia~le to fine wh,i.(:h
shall ·not be less than one: lakh n;ipees but
·.which may extend to two lakh r!upees:
. Provided that the COtJrt may, for reasQnS
!

to be. recorded in the j udgme~t, impose a fine

exceeding two lakh rupees" ·

The essential ingredient of ithis offence is that

the prosecution must prove that the accused has finan~ed.

'
· directly·· qr ·,indirectly
.
any of , the iactivities falling ir1
.

·sub-claus·e. ('i) to {v) of Clause {v,[Link]'a) of section' 2 '·of'

the Act or has harbored any pe~son engaged for· the

aforesaid activities. As far as the case of the

prosecution~is concerned, it is only of financing and not
of harbori'ng.
Section 8{c) of the NDPS Act reads as follows:

8. · P·rohibition of certain : operations . .: No '

person-·shall-
( a) ........ .
{b) ....... ..

2
 (Q} ptQduce, manufa~ture, p9ssess, $ell,
pµrcha~e 1 transpqrt, warehou-,, use, consume,
: . import ,inter-state, export ir,~ter-s~ate, ,j,.mport
... : · intc; India; export from Indi~ Qr tran~hip · any
narCQtii drug or psychotropic substanqe,·
. . I
exc~pt ·· for [Link] or scientific purposes and
in th• manner and to the extent provided by the
prqvislons of this Act or the rules or or<ilers
· made thereunder and in a cas~ where any such
· · provis:ion, imposes any requirement by way of
lic;ence, permit or authorisation also in
accor4ance with the terms. and conditions of
such litence, permit or authorisation:
Pro.v:ict~ct ..
that', and subject to the other '
prbvisions of this Act and the rules ~ade'
thereunder, the prohibitiqn against , the
cultivation of the cannabis plant for the
ptoducti~n of ganja or the production,
possession, use, constimption, purch~se, sale,
transport, warehousing, import inter-State and
export . inter-State of ganj a , for any PL!rpose
other .than medical and scientific purpose shall
take:· .¢ffect only from the ' date which the
Central Government may, by notification in the
Offi~ial Gazette, specify in this behalf:
.-· . - .

[[Link] frurther that nothing in this section

shall: apply to the export of poppy straw for
decorative purposes.]"

This is basically an offence for exporting or

importing into. India or exporting from India contraband

substance~ T~ough, the charges against the appellant were
. . .
of f inancirig .· and of indulging in i11teri1at.:[Link] smugglih'g,,
of contraband, virtually no evidence in this regard has
· been found .

we now may refer to the facts necessary for

disposal of .this case. on 04.01.2003, the Intelligence

3
 .-

Qffic~r, NarcQtic Department received information that at

the instan·ce· of the present appellant 7. 4 kgs. of heroin
. '

wo~ld be ~irried in a Toyota Qualis vehicle bearing [Link]

~:i C 9417 ._: [Link] vehicle was
. . .•
apprehende(t whe_n it was
- parked at iamil NadU Hotel of Mad1,Jrai - Alagar Koil r<~ad.

and 7 .4 kgs. of heroin was recQverect from it. At that.

time accused no. 2 to 6 were sitting ;in the ~ar. Accused

nos. 2 to 4 have been convicted under var,[Link]$ provi~ions
of the NDPS ~tt. we are not concerned with them since, to
ou! knowledg~, no appeal has been filed by them.

As fat · as the present appellant is concerned, the _

only evidehce, if it can be called that, is the statement

of a co-accused (accused no.2) and his own alleged

confession. As far as statement of co-accused {Ext. P41)

1s concerned, in that the co-accused states ~n great
detail as · to how he ca~e into _cor,tact with . one oth~r -
_person also _c-alled: Mohammed in Bombay who had.· instructed,
.' • ' I

him to got~ Manglapuram from. Bomba~. There he was again

asked to come to Hotel Airline at .Manglapuram where he.
. . ~

m~t the [Link] of Bombay. It was that Mohammed of

~ombay, .who- handed over the vehicle to him and told him

tha_t 7. 4 kgs .of heroin is kept .hidden in 7 packets in a

false compartment be'neath the front ·seat' C)f the ca'r. The ·, .
: ' .

only allegation with regard to app:ellarit is that after

taking delivery of ·the contraband from Mohammed of

Bombay, the co-accused was to take the heroin and hand it

4
 .. . . . .
over · to ..one Nalliappan. The ~aid ·Nalliappart · was
fl,lrther hand qver the heroin tQ th~ appellant.· Neithe·r
the said Mohammed from Bombay n9r [Link] have been

examined
4 . in the case nor they have been arrayed as
accused. ·Therefore, the link evidence is tQtally

mis$:Lng; ·Furthermore, the allegat:ion is only in the

. .

.nature· of -~earsay that Mohammed 'had told •[Link] co-accused.

'
that he had to deliver the contraband to the. present

-appellant.· Even if we take the confession of the co-

. accused Hasan Mohamed (A-2) into consideration, it would
only prove that Mohammed (from Bom~ay) had told the c;o-

accysed that. Nalliappan would handover the contraband to

•, . . ·.
the p_resent .appellant. This [Link]~ of a co-accused is a
v_ery . -· weak , •. type of evidence w~ich · needed

· corroborated : by some other evidence. The confession of. a

co-accused gives a clue to the investigating authorities

as to how . to investigate the matter and against whom to

I
investigate the matter. T~ereafter, it is for the
investigating officers to collect _evidence against the

s~id perso:n -:~ho has been named by t~~ . co-accu~ed. In the, ·

present case no .such corroborative ~~idence has been l~d.

That brings us to the confess~onal statement of the i

appe~lant recorded by PW-1. Admittedly, this confessiQn

. • I .
was recorded after the appellant
.
~as .arrested, It is
i

. ·true: that the issue, whether a statement · recorded under I •

Section 67. of the NOPS Act ,cani b~ construed as a

15
 c97fe$-ion~1· .statement even if the ofti~,r whQ has
recorded. s:uch statement was not to ll>e treated c,.s a police
· Qfficer, · h"'s· 6~,n referred to a lar19er Bench in . th~ cri1se

of Tofan Singh v. State of Tamil Naclu:i..

we, for the decision of this case, therefore,

proceed on the premise that the confession is ac,fmissible.
l;ven if it :i.s . admissible, the cour_t has to be satisfied
· that it .is a voluntary statement, ~ree from any pressure
·and alsQ .· tha·t the accused was ·:apprised ·of . his righis.

bef()re [Link] the confession. iNQ s1,1ch mat~ria;J. has

been brought on the re~ord of this ~a$e. It is alsQ well

settl~d that a confession, espe~ially a confession
recorded when the accused is in custody, is a weak pi~ct
of E:?Vidence · and there must be some corroborative
n evidence;. The c·onfession of the co-accused, . which was .
said to · be · a corroborative piece Qf evidence, has been .
discussed above and is of rio materi~l value. I
Theref~re,
other than the two confessional stitements - one of the

·co-accused and the other of the accused, the prosecution

has [Link] evidence to link t~e appellant with the
c::omm:[Link] ·of the offence., As sµch, without
. . ·going into, . '

the legality of the admissibility of the confession, 'we ,·

hold that· even if [Link] confessions are admissible then
also the evidence is not sufficient to convict the
accused. I.
· ·. _1 (20f3) j_s sec 31.

6
 we, accordingly, find for~e i~ the ~ppeal. we hold
that both the Trial CQ1.,1rt and th!e High CQurt wr~m9ly
,onvi,ted ±he accused. w~ set astd~ the judgment of both
th~ Courts below. Appeal is a~cdrdingly allowed, Th-1
ac(:used .· ·· is .. already on bail. Hts bail , bonds are
· dis,;:harged.

■ I ■ I ■■■■■ I ■■■ I ■■■ I ■J ■

: (DEEPAK GUPTA)

' i
; , - . r· ',
.. I .. ■
■ ~,I ■ • • • • I ...JI
•••

New Delhi
: (ANIRUDDHA rOSE} .
'
September 04, 2019

,.

7
 · . ITEM ... NO . :1,2(:) . .
COURT
.
N0.1~
'
0

§ -y P' R ·e ri E C O U R T .: () 'F I" N D J A ,

-. . . RECORD OF PROCE~Q~NGS
. . . ,, . . -: ·- .·

·.. Criminal Appear NQ( s). 296/2'i)14

MOHJ\MMEQ· FASR;I:N Appellant(s)
VERSUS
. . . .

. ~TAT~ RJ:P. BY THE INTELLIGENCE OFFICER Respondent(s)

'. (IA No.~z$99~12a13 - EXEMPTION FROM FILI~~ Q.T.)
. ·. . '

· .·. 9ate : (;)4 .. (;)9-281:9 This matter was called·, on for ht;!arin9 tQday.
· «;ORAM : ..
HON'BLE MR. JUSTICE DEEPAK GUPTA
HON'BLE MR. JUSTICE ANIRUDDHA BbSE

FQr Appellant(s).
Mr. Shikhil Suri, Adv.
Mr. Shiv Kumar Suri, AOR
Mr. Shilpa Saini, Adv.
FQr Respondent(_s) ..
Mr. Aj,it· Kumar Sinha, Adv.
Mr. Sanj ay Kumar Tya'gi, Adv.
Mr. Rajan Kumar Chautasia, Adv.
Mrs. ~ekha Pandey, A~v.
Mr. T .A. Khan, Adv. :
Mr. Divyansh Rai, Adv.
Mr. B.V. Balaram Das, AOR
I
Mr. B. Krishna Prasa~, AOR ' I

UPON ~earing .the counsel the Court made the follQwing

0 R D E R
: ..
-

The ~pp~al is allowed' i~ terms of t~e signed reportabl•

·judgment. ·

.Pending apptication(s), if any, stahds disposed of.

·~ (ARJUN BISHT) (RENU KAPOOR)

. COURT MASTER (SH) BRANCH OFFICER
·· . ( sign~d reportable judgment is placed on the file)

8
 .MANV/SC/0272/2005.. ·
·- _ [Link] citation: ·2005(2)Ac;R1291(5C), 2005(30)AIC497, AIR20055C2265, 2004(2)ALD(Cri)B47, 2005 (52) Ace; 710, 2Q05(2)ALT(Cri)214,
(~QQ6)1¢1i1.,misc;, nc2oos)CCRUB(S"c.), 2ooscriLJ22os, 2005(2)Crimes87(SC), 26os(99)EC<;:737, 2005([Link](SC), JT200.:;(4)SC~73,
2005(3)KLT19-?(S·(: ), 2005(3)PUR85; 2005(2)RCR(Criminal)621, (2005)4SCC 350, [2QO:S]1SC R417, 2005(2)ShimLC 107

_IN THE SlJPREM~ COURT :OF INl)IA

Cri"minal Appeal Nos. 222 of 1997 'and 375 of 2003

'Deciqeo On: 08.04.2005

Appellants: State of Himachal Prade$h c;1nd Ors.

Vs.
Respondent: Pawan Kumar and Ors.
Hon'[Link] Judges/Coram;
R.Q. l,.ahoti, C.J., _G.P. -Mi;:Jthur and P. K. Balasubramanyi;Jn, .J}.
counsels:
FQrA/i)peliant/Petitloner/Plaintiff: J.S. Attr? Addi. Ad.v. General anc/ L.R. Rath, A'(jv. fQr
. in Cr/. _A. No, 222/97 and Aruneshwar Gupta, Addi. Adv. Generi;!II, Nav({Jen KV,mrJr
- _$inf!h i;:Jnd Shtvangi,_Ad~s. in Cr!. A. No. 375Y200 '
- -.. F9r Respondents/Pefendant: Nanita Sharma, Vivek, Sharma and ]qnesh Singh, Ac/V$, ·
in Cr!. A. No. 222/97 and Madhurima Tatia and Indra Makwana,· Ac/vs. in Cr!. A. No.
J75/2Q0J -
I
ca·se Note: - - . .
· • 1-telc:J: N.D.P.s. Ac:t, _1985 - Section 50-.. sea:rch and Seizure--search ()f c\l
p:erson as u/s. 50 of NDPS Act-.. As against a search of any bag, briefC!jase or
i;iny article or container etc. which is being carried by him--'Person' as
,li!nder Section 5-0 i~id, having regard to th~ scheme of the Act and the
· ·context in whic-11 it has been used in the Section, it nat1,1rally means a
bijl'han being or a living individual unit and nbt an artificial person--A bag,
~[Link]:as;e 9r -any su(:h··a-rticle or container, .etc.i can, uhder no circ1.1mstanc;:~s,
-be :treated ·a·s body of a human being--They are given a separate name and ·
are ldentifh:1ble ·as s1.1ch--ratio ·of judgment in State of· Punjab 8aldev • v.
_Singh [1999 (84 l lSCR 54 (SC)]-.. Matter is remitted back to the High Co1,1rt
.fo.r a fresh consideration of the appeal on merits.
JUDGMENT
G.P. Mathur, J.

:c;i;:iminal Appeal No. 222 of 1997

-_1 . In view of difference of opinion between two~ learned Judges who heard the
ap·peal, · the matter has been placed before this larger bench and the question for
_ con·siderat-iori is [Link] safeguards provideo by Section 50 ofth~ Narcotic Drugs
•- ~nd : Psychotropic· SLJbstances Act, , 1985 (for short, 'the NDPS_ Act' or 'the Ac;t')
r~gl:lrding search bf- any "person" would also apply to any ba.·g, briefcase or any s4ch
1
· .art:i"cle or container ~tc:i,. which is being carried by him. - · '
. . . . .

2. The esiential facts of the case, which are necessary for decision of the appeal,

. 26~0a-2021 (Page 1 of 1.4} · [Link]:in1,[Link]

 n!lc;:lY lq~ stat~9. in bri~L According to the case of thr pros~cution, Hvku·m Singh
Mynshi Rc,m, H~aq <;:onstables and some police ·pe.r$ 9nnel were che<;~ing Ql,l$e~ at the·
~no ·
l?Y$ sti;md, Man(:li in the· night of 1a. 7. ~994. While c~ecking c;1 PI.J$ at al;)oyt ~.4.!5, p.m.;
1

they no~ic;:eg thi;itthe c;1cc;used PaV>.(an Kumc;1r (respondent her~in), who was c;c;:1rrying a
··. bag; Ex.1?3, $lipped c;,vt from the rear door of the t,n,1s and thereafter s~arted n,mning
t9w;;irds Sl.l~Zi Mandi si(:Je. The police personnel got su~picious and after a c;:has~
apprehendeQ him near the gate or bus stand. They felt smell of opit,1m emitting from
the bag ~mo, therefor~, telephonically informed Prem Thak1.1r, Oep1,.Jty S.P./$.H.O.,
·. P.S. Sac;lar, Mi;mdi. Prem Thakur came to the spot! an<;! inq1,Jireo from the accLJsed
· Whether he wanted to be searched by police ori by a Mc;1gistrate. The c;1ccused
· . qiscloseo his name and expressed his willingness to be searcheo by the police. A
$ec;3rc;h of the i=!CCl,Jsed and the bag being carried by him WqS then i::;onc;luc;tecl and, ~(:;0. ,
.· gms;. of qpium wn;ippeo in polythene was foun9 inside th~ bag. TW(? si;:impl,es of the_ .
. re~QvereQ opium; each weighing 20 gms. were tak~~ and were seal~d separqt(i!ly -anp
'.~($eizure memo Wc;IS prepared, On the basis of the Ruka [Link], an FIR was lodged at
ttie P<;>lice Stc;ition anq ·thereafter us\;Jal ir.,ves~i~atiqn followed whi{:h c4lminated in'
filing of a c:harge:-$heet against the accused. The leaned Sessions Jupge, M~ncli, by
th~Jyggm~nt and order dated 26.11.1994 convicted the respondent (accysed) un<;ler
$e.di9n·1§3 of the NDPS Act and sentenced him to undergo rigorous imprisonm~nt f9r
10 Yl:!ars ancl to pay a fine of Rs. 1 lakh. The resporndent preferred an appeal i;lgainst
h(s .conviction and sentence before the High Court of Himachal Pradesh. The High
<;:ourt helo that the opinion given by the Chemical Examiner regarding· thE;l s1,1pstanc;e
re~ov~re(:I from the bag of the acc1,Jsed could not be treated to be.. opinion 9f the
<;hemic;:al Examiner _as defined under the Act and th:e Rules and, th~ref9re, th~ same
· ·. hc;iq to be e~cluded · from consideration. It was further held that the provisions of
-S~ction 50 of N,DPS Act had not been complied with while conducting the. s~arch of
the bag and,• therefore, :recov,ery of opium from the possession· of the acq;ised was
.. not established.'On -these 'findings, the app_eal. was allowed by the j(Jcjgment and
9rqler dated 26.8.1996 c:md 'the conviction of the respbndent was set aside. · • I. •·.
.·. • 3,. The State of Himachal Pradesh preferred the present appeal by special le~ye
· [Link] the jud~ment of acquittal passed by the High Col,lrt. ·The appeal was
. · · initially heard by a Bench of two learned Judges. Hon'ble Y.K. Sabharwal, J. hel<;I that
·.·the view taken by th,e High Court that the report of the Chemical Examiner could not
. b~ ·taken into consideration was not correct. The finding recorded by the High c;ourt
that the prosecution ha9 failed to prove that any irncriminpting substance had be~n ,
··.··recovered from the: po·s?essiori of the accused was !accord,ngly reversed. Regarding
the applicability of Section 50 of the NDPS Act after referring to Namdi. Frc;1n<;is
Nwazor v. LJnioh of Jndia. and Anr. MANU/SC/1264/1998 : (1998)8SCC534 , His
·.. Lordship•held as un'der :· '

.. ,;The ans~er fo the· ·real ·question in cases where;the line of separation is thin
.?hd fine can be obtained by applying the test of inextricable. connection and
. then conclusion rec1ched as to whether the sear:ch was that of a 'persqn' or
not. If the search is of a bag which is inextricably connected with the person
of the accused, Section 50 of the NDPS Act will apply, and if it is not so
. connected, the provisions · will . not apply .............. .
. ; ... _....................................... The offending article was found in the bag
:which accusE!d/r:E:!spondent was carrying. The te~st of inextricable connection
· between . the person searched and the object recovered is demonstrably
applicable. It cannot tte held that Section 50 has no application mer~ly
because the offending article was in tl:ie bag which the ·accused was carrying
. 1·
with him," . .· ..

, 26.08-2021 (Page 2 of 14). [Link] Sameer Parekh

 ·.. ''On thi~. fqi<;:t [Link], it cannot be held thc;it t~e search was not of i.;I per~~m
pyt .w<il~ of a pag .. Both are inextricably connected. It has tq be helg that the
. ·se~ir~h was that of the respondent's person. Clearly, Section SQ qf the, NOP.$
A<;:t WiJS [Link]. but was not,complied. Th~refore, th,e conviction of 'the
rE;spgndent <:[Link] not be sustained and the High Cq1,Jrt rightly meld thjt ·
?t;cti9n 50 h1;1d been breached." · ·
· HQ0.1ble Arijit 'Pasayat, J. expressed agreement wit), the vif?W that the report of the
. ¢hemic~I Examiner could not be excluded but 011 the question of applic;apility of '
Section SO of NDPS Act held that the said provision w,qs applicable only in the <;:ij$e of
. a $[Link] ofa person and not when search of a bag whic;h is being ~arrie(i QY 9 p<:rson
Qn his. sho1,Jlc;ler or back is conducted. His Lordship accordingly helc;I that having
r~9c;1rd to the purport and object of the NDPS Act, the langµage of Se<;:ti9n $0 c;imnqt
be given any. strained .meaning so as to frustrate th:e legislative [Link]~. It was thus
held that there wc;is n9 ..infrattion of the requirement of Section SO and th~ finding to
. the s:;ont,raryrecorded by. the High Court was clearly wrong. In view, of this pifference .
qf opinicin,·the appeal has been placed before:the present Bench. , . · · · ··

4. The controver$y turns round Section 50 of the. NDPS Act and the sc;1m~ (<:1t'th~
. [Link] time) read, as [Link] :

"SO. Conditions under which search of peri'sons shall be conch.1cted' -

(1.) When any officer duly authorized under Section 42 is about to search any
. 'person under the provisions of Section 41, Section 42 or Section 43, he
shall, if such. person so requires, .take such person without unnecessary del,y 1
to the neare$t Gazetted Officer of any of the departments mentioned in
·.. ·.Section 42 or to..the.·.nearest Magistrate. · ·
· {2}If such requisition is made, the officer may detain the person untrl he can
··.bring. him before: the·. Gazetted Officer. or the Magistrate referred to il:l. $\Jb;-
•·.· se~tio n (l) . •·. · ·· · ··

' ·. (3)The Gazette9 [Link] or the Magistrate before whqm any such per~on_' is
·.·.brought shall,· 1f he sees no reasonable ground for search, forthwith
· discharge, the person but otherwise shall direct that search be made.

(4) No female shail be searched by anyone excepting a female."

~/The question, \.vhicli · requires consideration, is what is the meaning of the woros
. ",sec;trch· a11y person'; occurring in Sub-section (1) of Section 50 of the Act. Learned
• counsel for the accused has submitted that the word ''person" occurring in Section 50
1

wou[d also include within rts ambit any bag, briefcase or any such article or
. container, etc,, being c~rried by such person and the provisions of Section 50 have to
··. be ?trictly. compMed with while conducting, search of such bag, briefcase, article or
container, etc. Learned counsel for the State has, orri the other hand; subrr,.itted that
., . ther.e is 'ho warrant/or givil")g suth an extended ·rt,eaning ·and the word "person"'
Would mean only the person himself and not any bag, briefcase, article or container, .
etc., being carried by him.
' ... . . ·. ', . . , . .

· ·.
1
6. The word !'person" has not been defined in the Act. Section 2(xxix) of the Act says ·
thc;1t the words and t;xpressions used herein and not defined but defined in the Code
of CriminaJ Procedur~. have the meanings respectively assigned to them in that Code.
. . ' '

. . '

~9,0fH0:;1 (Pag!;l ~ qf14} · [Link].c9m , Sc;1mt1ler Parekh

 '. ·.. . . . - .. :--. ' '

The. <;ode of c;riminc;1I Procedure, however, ooes not 9f;fine the wqrc;t "p~rson • Section 11

· 2(y) .of the Gode. say~ that the. words and expressi9ns µsed th~rein a,nc;i not d~fine~
byt .cJefinec.l Tn the lrn;Uc;1n Penal Code have the m,eanings re~r;,e<;:tively a$~iQ.n~d to
them in thG'it Cqd~. Section 11 of the Indian Penal (;ode says th~t the worQ "person"
. irn;:l1,19e$ c;my Company or Association or bo~y of '.bersons wheth~r incor1;1orated 9r
· 119t Similar clefinitiOn:•of the word "perso~". ~as l;>~en given in ~ec;:~iQn 3( 42) of ~he
Qenerat (;lavses Act .. Therefore, these def1n1t1ons rf;!Mder no assistance for resolving
· . th~ cc;>Mtrov~nw in hi\lnd. .
·7. Qnf of th~ p~~ic. principles of interpretation ~f Statvtes is to qmstrue them',
ij~c,qr<;ling t.o plain, literal and grammi;ltical meaning of the w9rds. If th.?Jt is cQntrary
or
• tp, inc·onsistent with,. any express intention or declar~d purp9s~ of the Statl,)te, or .
if it wpi,.lld involve any apsurdity, repugnanc;:y or inco!nsistency, the grammaticc;il sense
· mvst then. pe mociified, extended or abrigged,. so far as to avoi~ such r,m.
incqnvenien¢e, but no .further. The onus of showing that the word$ do not mea.n. what
tl'ley ~ay lies ·heavily c;>n the party who alleges it. He must advaric~ something which
<;:le?trly shows th 9t the grammatical construction w9yl9 be repugni';lnt to th~ int~ntion
Qf tne Act. or lead to s9me manifest absurdity ·
' . . ' ·_.. . '·-. . . ,. .t

(~~~ <;raies on St<=1tute L<=1w, Seventh ed. page: 83-~5). In the well known treatise . .
l?rineip1€;l$ of $tq1tutory Interpretation by Justice G.P. Singh, the learned <;1uthor has
· ·. en~n~i~tecj the sa_me principle that the words of th~ Statyte are first understood, i.n
·. •th~1rr l'l(JtUrql, · [Link] or popular sense and phras:es and sentences are cQnstrued
~cc9rd,ln9. to their grammatical meaning, unless that !eads to some absLirc,;lity or
~n1~$S there is [Link],g In the context or in the object of the Statijte to suQgest the
cont'rarv (See the· Chapter - The Rule of Literal Corhstn.,1ction -page 78 - Ninth •c1.).
This .CQl,lrt ha.s also _'followed this principle right frorn the beginning. In Jugalkishor~
.• Saraf v. Rc:1w. Cotton ,co: Ltd. MANU/SC/0005/1955 I: [1955]1SCR1369 , S.R. Oes, J.
·said:.-
1
The carclinal rule of construction of statutes is to read the ste1tute [Link],
.·. '

that is, by givi,ng to the words used by the legislature their ordinary, nat1Jral
• and grammatical meaning. If, however, such a reading leads to absurdity and
the words are ~:usceptible of another meaning the Courf may adopt the same .
•But if no [Link] construction is possible, the Court must adopt the
· ordinary rule oflit~ral interpretation," ·
, A':<::atena of subsequentdecisions have followed the Jame line. It, therefore, b'e~O'me$
·. ne¢essaty fo look tq •dictionaries to ascertain th~ correct meaning· of the, word
. ·. ''person". ·
· s. The dictionary meaning of the word "person" is as. u'nder :

www..manupatra;com Sam~er Parekh

 1~,
m,...,u..... ®

~lin indi,..,"id1:al: a li"1,.ring .soul; a human

b~~ng;

c·:t-he c,ut 1darcl .,ppear~nce, ~ c, :

bodily form; a disti~cti :,n fn 1

fcrrn; according as ~tte subject Cf the '

ve::b is [Link] [Link]. s~[Link], spoke!l to
,~r spoken of.

W~bster· • ~ I'[Link];l ?tew : An ~ndivid·.Jal human ~eing: a h·.::[Link]

·1.;:1ter.r:i~t~onai DiC;tionai"y body as dist~nguished from an animal
or chin;: an individ~al having a
si;ecifiect ;:1ncl of bo~ily appea:rance;
t.?":e br::i:d.y !J f a !"Ant1,an beir~g as
p.~[Link] t.w c-ublib -~ie,.. .: r~ormally

~~~~h~~=~~p~r~r:~::e~~~~~~~~~i -~~~ca
being possessing or ~orming the
~utjec~ of personaliiy.
1

Ir/ gener~l usage,.. a h;1.,1man being, (i.e.'

t1at'1lral person)·, · tno11gh by -'!ltatu·u!
term may includ.e labC!ur
orQanization!:_, partne:rships,
as~ociations, corporations.

:taw Lex.l._q~n : : The expre$sion 'person' i3 a noun

. l;-Y P. Ramanatha Aiyar a9ccrding to gr·arnmar ~nd it means: ~
[Link] repre:.sented ·a.s on the stage, I
,:r. :n~mar~ being; a self-:[Link].s
[Link],:r:1ali1:y.

. '

9. [Link] not concerned here with the wide definitiorn of the yvord "person", whic;:h in
·.. th~ legal world includes corporations, associations or body of individuc;lls ?,IS factiJ(;llly
·· in these .type of cases search of their premises can :be done and not of their pe,r~Qn.
· . Hav_ing re_gar:d. to the sctieme of the Act and the context in 1which it has been l,JSeql in
·_ the Section. it:. naturally means a human being or a i living rndiviqual, unit ,;m9 not <im
. artificic;1I per~on. the word has to be understood in a broa9 commonsense, ma·nn~.r ·.
._an9, therefore, not J:1 n_aked or 11ude body of a hum4n being b1,Jt the manner in yvhic;h
-9 _normal human being will move about in a civilized society. Therefore, the most
. • appropriate meaning,· of_ the word "person" appears to be - "the body Qf a human
·. being' as presented to public view usually with: its appropriate coverings and
. ~lothings". In a civilized society appropriate coverings and clothings are considered
._ apso_lutely essential arid no sane h1,Jman being com:es in the gaze of others without
appropriate coverings and clothings. The appropriat¢ coverings will include footwec!r
also i:IS normally it is considered an essential _article !to be worn while moving outside
one's home. Such apprdpriate coverings or clothings or footwear, after being worn,
_move along with the human body without any appre~iable or extra effort. Once worn,
·- · they would not rtorrnally get detached from the body: of the human being unless some
specific· effort in that direction [s made. For interpr$ting the provision, rare cases' of
some reHgious monks'and sages, wh.o, according to the ten~ts of their religiO\JS beli~f
do
·. .
1
not cover their body with clothings, are not to be taken notice of. Therefore, the
· word _"person" would mean a human being with appropriate coverings and clC:,things
· and also footwear .
. 1 O. A bJg, briefc;ase · or any such article or !container, etc. can, under no
·. c:ircumstances, be treated a~ body of a human being 1 They are given a separate name
, c1nd are identifiable·as. such. They cc1nnot even remotely be treated to be part of th~
body of a human being. Depending upon the physi~al capacity of a: person, he may,
· cc1rry :any number of .items like a bag, a briefcase, ,a suitcase, a tin box, a thaila, Q
jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight.

2e-Qa-2021 (Page 5 of 14) [Link]

 I zi,: :
nl':-···
.-.-. ,··/ ..
<_·'Jal
1/-,·--·.·>·-,,,

. M9w~wer, whHe c;9rrying ~r moving alqng with them, sr:>rv1e ~xtrc;i ,fforl; qr energy
.\!1fQUIQ be reg~ired. 'fhey wq1,1IQ hqve to l;>e carried either by the hand or hun~ on th~
1

· shoytder or b?H::k or pJac;e~ 9n tMe heqcj. In comrnQri Qarlanc~ it w91,1ld lqe $i;lid ,tha~ a
. 1/~r~on is carrying a p~r,tic1,1lar artid~, specifying tl!l(:; manner in whi<:h it weis .<;:i;irri,d
like .hand, shoµloer, t,ack or Me~d, etc. Ther-efore, it is not possi~le tQ inclyd¢ the~e
?iJrticles within. the
. ambit of the wore;! "person" occwrr!ng
. in Section SO of thE! A~t,
· ·11. An. [Link]~ting article can be kept c;onceal~d in the body or <;lothin9s ol" ·
c9veriMg~ in €liffer:erit manner or in the footwear. Wnile making a s~arch of s1Jc"1 ·tvt,,e
Qf articles, which have .t;>een kept so cpncealed, it wq1 certainly c;ome within [Link]
. of ~he word "Siearch Qf person". Qne of the tests, Whiqh can be 9pplieo is, where in
th~ pro~es~ of sea;m;h tlile human body c;:omes into cqntact or shall hav~ tQ l;)e tPY<;:he(:f
py th~ ~er$9n cqrrying out trie search, it will be sea rc;;:h of a pers~rn. $ome indiqition
1

.. 9f this fs prov-ic;Je(:i py Sub-section ( 4) of Section 50 of the Act, whit;:h prpvides thc:;lt

...·.· no fernale Shc!IU be s~arched by anyone exceptingi a .femc,1le. The legislatvre has
conscioysly made this provision as while conductiDg sean;:h of a femaie, ·her body
may oome in contatt or may need to be touched ijnd, ther~fore, it $hQl,lld be don(;:?
9nly t,y a femi;lle; Iri the case of a bag, briefcase or any svch article or container, etc..,
· tlll~y woyld not normally move along with the body :of the human being 1,1r,less s~me
ex~ra [Link] effort is made. Either they have to be carriei;:l in hand or h1,mg on th€l
· . [Link]~r or 'b~c;;:k [Link] on the head. They can i be easily and in no time pla<:;:ec;I
·. c,Y-{ay from 5he body 9fthe carrier. In order to make. a 1 search of s1,.1ch type of object.~,
.· · the bqdy ofthe <,:arri~r will not come in contact of the person conduc~ing the sean;:h.
· · [Link] obj~cts cannot be said to be inextricably con/nected with the person, flamely,
·th~J>oay of the human being. Inextricable means irlcapable of being dis~ntangled or
\,mtied or forming a m~z~ or tangle from which it is impossif le to get free. . .
·. i 2.. The· scope· and· ambit of Section so of the Act was examined in consider~lt:;,I~
· getail bY a Constitution Bench in State iof Punjab v; B91dev Singh
. ti,l!ANU/SC:/0981/1999<: 1999CriLJ3(?72 and para 12 iof the reports is being repr9d1,1ced
. below: · ·

.. "12., On its plain reading, Section 50 would come into play' only in the case
· ··'Of a search of a person as distinguished from search of any premises etc.
· However,. if the empowered officer, without, any prior information· as
.contemplated by Section 42 of the Act rnakes ai search or. causes arrest of a,
person during the normal course of investigation into an offence or suspected
·offence and on completion of that search, a contraband under the [Link] Act
is also recovered, the requirements of Sectfon 50 of the Act are not
·· attracted." · ·

. The Bench recorded its conclusion in para: 57 of th~ reports and sub-paras ( 1), (?),
•. , (;'3) and (6) are bein.g reproduced
.
below : .
5 7. On .the basis of the recsoning and discussion above, the following
· condui;ions aris_~: . · .
{1) That wh~fi an empowered officer or 9 duly authorized officer
•acting. on . .·prio.r. . info'nnation
. .·.
is about
. .
to II search a person, it · is
· · imperative for him to inform the person con;cerned of his right undE:?r
[Link] {1) of Section 50 of being taken to the nearest gazetted·
officer or th~ nearest Magistrate for making the· search. However,
such information may not necessarily be in writing ..

[Link].9om $arrn:1er PE)rekh

 m·manupClfre®
. . . ~ . '

.(2)Thaffail1.1re to inform the person concerned about' the .existene;:e of.

his ri9ht 'to be searched before a
gazettec;I officer or a Magistn;1te
would cause prejudice to an accused.
(3)That a search made by an .empowereo officer, on prior
· information, without informing the person Qf his right that if he sp
req"'1:res, he [Link] be taken before a gazettec:J officer or a Magistrate
f9r sE;?ard, ari<;I in case he so opts, failure to conduct his se?irch
-t;>efore a gazetted officer or a Magistrate may not vitiate the trial !put .
would renoer the recovery of the illicit article sµspect and vitiate the
· conviction and sentence of an accused, w_here the conviction has
bt=?en -recon::le~. only on the basis of the possessi(>n of the illi<;:it
article; .rec;overed from his person, [Link] a search c9nquc;tec;:I .in,.
violation of the provisions of Section 50 of the Act.,
(6) That. inthe context in which the protection has been incorporateQ
in [Link] So for the benefit of the: person intended to be se~u·cheg,
we do not express any opinion whether the provisions of Section ~O
are mandatory 9r directory, [Link] hold that failure to inform _the person
concerned of his right as emanating from StJb-section 0) of Section
~O, may render the recovery of the contraband suspect and the
conviction·
.,.. ahd
. .. · sentence of an accused bad and unsustainable
. in
I
••- aw.
- · 13. The abov~ quoted dictum of the Constitution Bench shpws that the pr9visi9ns of
·. 5pe{:_tion 50 wfl! · [Link] Tnto play only in the case of personal search of the a~qys~q ;;m9
not of some baggage'like a bag, article or container, etc.. which he may J,e qfrrYin!;j, ,
. " . , ' '

·. 14. Learned counsel· for

the State has referred to l~rge ·number of d~c;isions of thi$
·. CQurt Wherein· SectJon.. 50 was held inapplicable in the case of search Qf som~
qaggage orarticle etc., which was in im'mediate possession or was being carri~d by
the -accused. We do not consider ~t necessary to burden this judgment by ref~rring to
all the authorities cited but would only give a gist of some of the Gases whic:h i$ as
1,1nder: - · ·

· .I. Abdul. Rashid. lbr~him Mansuri v. State ~f Gujarat MANU/SC/0059/2000 :

20O0CriLJ 1384 .., This is a decision by a Three Judge Bench presided over by
. Dr. A.S. Anand; C.J., who wrote the opinion of the Court in the [Link]
: Bench decision. in ·state of Punjab v. Baldev Si)ngh. In this casf: four gunny
bags were fouti'd 'in an auto rickshaw whic:h the accused was drivin'g ·and·
· there was no other. persoh present. The argument based on non-compliance
of Section so· as explained in the case of Bald~v Singh. was rejected on the
[Link] that the g1/nhy bags were not inextricably connected with the person
of the 13ccusedi ·_ .
.. . . . '

II. Madan Lal v. State of H.P. MANU/SC/05991/2003 : 2003CriLJ3868 {para

l6) - It was held that Section SQ would apply in the case of search of a
persona as contrasted to search of vehicles, premises or articles.
l
IU: Gurbax Singh v. State of Haryana MANU/SC/0083/2001 : 2001CriLJ 11(;,G
.. Accused goLdown from a train carrying a Katta (gunny bag) on his
shoul_der. Held that Section 50 was not applicable.
IV. State · of ;-[Link] v. Makhan Singh MANU/SC/0181/2004'

[Link]:fn!JPc,[Link] Sameer Par~kh

 ,~,
.IZJ manupotra®
. (2Q04)92<;TR{SC)Sf?4 - Tbe acc1.,1sed was appreh~nd~d while alightin~ fr(;)m a
·.·.bys. with. a tin box in his hand in which cqntr~b?lnd VV?IS found. The High
Cqurt acquitted th~ .qGC1,1sed on [Link] of non~compliance of Section so.' On
· .· the finc,Hrig thq3t Section will not apply, the judgment 9f th~ High Co1.,1rt W9S
[Link] and the accused was convicted. · ·· ·
. .: : . -.· ' ' . . . · .· - ' . ' .
V; Kanhaiya Lal Yr State of M.P. : (2000)10SG,CJSO -One kg. of opium was ·'
f9und in ~l bag which was being carried by the accused. The arg1,.1ment l;)ased
on S~ction 50 wc;1s .rejected on the ground that it W?IS not a ces~ of search Qf
the person of the ac¢vsed. · · ·

VI. ijirakishore Kar v. State of Orissa MANU/SC/122;,/1999 : AJR20QOSC~(526

. - [Link] found lying on a plastic bag in a train compartment. Argum~ntl
· [Link] on St;lction: ~Q was rejected on the ground that the acq.1secl was sitting
.· on the plastic bag and it was not a case of the search of the p~rsqn of th~
· ~ccusec;l. ·
·. VII.· · Kr.i$.hn~ : ·Kar:iwar v. State of Rajasthan MANIJ/$C/OQ6j/2004·. :
. • 2QQ4(91)lECC5,45 (para 19) -Held, Section 50 applie~ where search hqS to t;,e
·in relation to a 'person as' contrasted to search of premises, vehicle$, articles
Qr b,g. . t. . .

VIII. Sc:irjudas v. State of Gujarat MANU/SC/0649/1999 : 2000<;ril.J509 - Th~

ac;cu~eo were ric:!ing a scooter on which a bag was hanging in which charas
was. found - Section 50 was held not applicable as it was not a case wh~re
the person ofthe accused was searched.

·IX. Safkou Jabbi v. State of Maharashtra MANU/SC/0991/2003

4003(158}ELT801(SC) - Heroine was found in a bag.. It was held that Section
50 was not appli~able as it applies to search of a person.
15·,.. Le?:1rned couhsel for the respondent has placed stron'g relianc:e ,on Namdi Fr;;incis .
. . Nw~ior·v. Uhion' of India and Anr. MANU/SC/1264/1998: (1998)8SCCS34 which is a
· [Link] by a .Bench of three learned Judges. In this' case, the accused had c;hec;:ked in
9t th¢ Indira Gandhi' I,nternational Airport fof taking the flight from Delh'i to Lagos. A ·
~earn of the Narcotics Control Bureau, on suspicion, decided to check his baggage. At
,the· point of time .When the actual search took place, he was carrying two handl;)ggs
.pufnothing. incriminc~ting was found therefrom. He had booked one bag which had
alr~aqy been checked in and was leaped in the aircraft by which he was supposed to
travel. Th,. bag was brought to the customs counter and on checking 180 gms. of
. heroine was found [Link]. The Bench held that on a plain reading of Sub-section (1)
of Section SO, it appli~s to cases of search of a person and not to search. of any
· article in the sense that the article is at a distant place from where the offender is
actually searched. After arriving at the above finding, the Bench also observed ,. "We
: must hasten to· clarify that if that person is carrying a handbag or the like' and the
. incrlmlnating article Js . found therefrom, it would 'still be a··search of the person 9f the
.accused requiring compliance with Section 50 of the, Act. However, when an article is ,
lying elsewhere anq is .not on the person of the accused and is brought to a place
where the accused ls-found, and on search, incriminating articles are found therefrom
it cannot attract the requirements of Section SO of the Act for the simple re?Json thc;lt
it was not found ori the accused person.'' The Benc;:h then finally concluded that on
the facts of the case Section 50 was not attracted. The facts of the case clearly show
[Link] bag from [Link]. incriminating article was recovered had already been checked

. ..
26-Qe,,2021. {Plflge a of 14) [Link].~m
 in ?ind was loao~d in the airc;:raft. Therefore, it w,as not ~t all a search of q per~on tq
\1\/ht~h S~c;tion 50 mcliy be attracted. The observatiqns, whic;:h was ma<;le in the later
part·9·f the judgment (reproduc;:ed above), are more-in the nat1,.1re of ooit~r as such a
sit1,1~tion WQS not r~quired to be considered for the decision of the case,. No reasons
h~.we been given for arriving at the conclusion that sE;?arch of a handbag being ~arriec;I
by a person would ~[Link] to search of a person. It may be noted that this case was
decicJed prior to.the_ Constitution Bench decision in State of Punjab v. Baldev. Singh.
· After the oecision i.n Baldev Singh, this Court has consistently held that .Section SO
would orily ciipply to sec)rch of a person and riot to any bag, article ·or container, etc.
peing carried by him.. . · I
. . . . . .

. A_nQther jlJd~·ment relied upon by the learned coµnsel for the accvse<;I is t;,~ckodan ·
. A~dLJI. Rc'/lhiman v. State of Kerala MANU/SC/0324/2002 : 2Q02CriLJ2$29 . Her~ tl
. · gms o.f opium was fo1;1nd in a polythene bag which had been corn::ealed in the fold of
.· (lhoti which thE;? accused was wearing. This was clearly a case of s~arch of a per~on~,
· as exp~ained above, and Section so was rightly held applicable.

---1~ .• There is anothei-.-cispect of the matter, which requires cl>nsideration. Criminal law
· sh9ulc;l be absoluteiy certain and clear and there should be no ambiguity or conf1,,1sion
in its _application. The same principle should apply in the case of s(=;!an;h or ~eizl).re,
·._ Which come in the domain of detection of crime. The position of suc::h bc;1gs or articles
. is not static .and· the person carrying them often changes the mc;inner in which they
· qr$ carried: Pe·o·pre· waiting at a bus stand or railway platform sometimes ke~p their
. · Rag9age on the grour,~ and sometimes k~ep in their hand,• shoulder or pack. The
. chirnge of position from ground to hand or shoulde.r will take a fraction of Q !:iecon~
· . · b(}t on the argument advanced by learned counsel for the accused that search .of bag
·.-·. so carried would be search of a person, it will make a sharp difference i.n the ·
c;1pplicability of Section so of · the Act. After receiving informi;ltion, ~n officer
~mpqwered under Section 42 of the Act, may proceed to search this kind of bG1ggage
· . of a person which rj,ay have been placed oni,the ground, bvt if at that very mo·mer,t
wheq he may be about to open it, the person lifts the [Link] keeps it on his shoulqer
or some other place on his body, Section so may get attracted. The same l;>aggc:!ge
often keeps changing hands if [Link] one person are moving together in a gr9up .
. '$1,1ch transfer of baggage at the nick of time when it is about to be sei:lrcheci wourc;I
.. c19ai-n- create pra'ctic~I problem. Who in such a case would be informed of·the right
.. that he is tntitled :in_ laW to be searched before a Magistrate or a Gazetted O,ffic;:er?
·. This may read to .many practical difficulties. A ·statute should .be so interpreteo as to
· avoid unworkable or
impracticable results. In Statutory r'riterpretation by, Frc;incis
-. Bennion (Third ed ..)para 313, the principle has been stated ih the following manner:

"The court seeks to avoid a construction of an enactment that produces an

unworkable or impracticable result, since this is unlikely to have been
intended by Paj-liament. Sometimes however, there are overriding reasons for
applying such a construction, for example where it appears that Parliament
really [Link] itor· the literal meaning is, too strong."

The learned author has referred to Sheffield City Council v. Yorkshire Water Services
. Ltd, {1991) l WLR,58 ; where it was held as under :
. .· .

__ "ParUament is taken not to intend the ~arrying out of its enactments· to be

unworkable or impracticable, so. the court will be slow to find in favour of a
construction that leads to these consequences. This follows the path taken by
judges in developing the common law. ' ... the common law of England has

. ·.·. . , ·.
29-08-2021 (Page 9 of 14) ww.,[Link]~.com Sameer Parekh
 manvpatra®

. not ~Jw~l'{S '9f;!vel'oped i¢n. strictly logical line~, anc;I when~ th~ logic' leads
·dQwri a p~th that ,i•~ beset with practical difficLJltie~ the cowrts have not 'b~en
fright~n~c;I to [Link] asipe and se~k the pragmati~ soh,ition that will best serv~
the . nee<;ls of society/'
. ..,
· ·
Whil~•interpr~ting ~· provision in the Finance Ac;:t, 1972, Lon;l Denning in $.J., Gran9~ ·
Lt<:!. y. C~stQITlS qnd ·excise Commissioners (1979) 2 All ~R 91, opserved that ifttMe
lit~ral construc;:tion leags to imprclcticable res1,1lts, i.t wovlo be ne(:essary to c;lo little
•· adj\,Jstment s6 9s to mai<e the section workable. .
. . .
17~ .A.s p9inteo 9ut in State of P1,.mjab v. Baldev Sins:Jh, drug abuse is a soc;:ic;,I mllJlac;:ly.
yvhil(~·9ryg c;1<dgiGtion eats into the vitals 9f the society, [Link] tri;lffic;;kin$J not qnly eats
··• into tti,e vitc.'1I$ qf the economy of a c;:01,1ntry, but illicit money generated by drug
traffi~kin.g is often· used for illicit activities including encouragement of terrorism. It,
hc;1s cJcquire.c;I ·the dirner\5Jons of an· epidemic, affects the tec;:onomi.c pqli<;:ies of the
. $t~te, .c;:ornmts the:·sy·sterh and is detrimental to the f~ture of a country. Reference in
th¢. s.~id decisic;m hc:1s also been maoe to some l!nitec;l Nation Conventions against
·. illi~it trclffic;l<ing in narc;9tic; drugs, which the Government of Indi~ has ratified. It is,
ther~fQn;!, i0$0ll,Jtely• imperative that those who ind4lge in this kin9 of n~fc;:1riou$
.· ac::tivities should not go scot-free on techr,icc;1I pleas whic;h cqme hi:mdy to their
a~yc;1ntage in a fraction of second by slight movemer;it qf the baggage, being placed to
~ny pi;irt of their l;>o(;lyt which baggage may contain the inc;riminating article.
' lij. It will be useful here-to take note of ,the general law regarding searc;h and seizure
. and the effect of, any illegality committed during thE:! course of sei;3rch on the seizl,Jre
9r rec;ov¢ry rr,ade of any incriminating article. In $tate of Maharashtra v. [Link]
C,eimod9rdas· Soni MANU/SC/0518/1979 : 1980CriLJ429 , the Anti-<;::orruptiop Sw~aL
· ha(:j'rec:overed 100 gOld. bars each weighing 10. tolas having foreign markings from
the· 'residential premises of the ac'cuse1d,. consequent wpon which the cystom '
. aµthOrities initiated proceedings in which. he was convicted. The contention rc;iised
· . , was that the search and seizure of the gold by the police was illegal. It was helc;l that
· the police had powers under the Code of Criminal Procedure to search and seize. the
gold if they had reason to believe that a cognizable offence hac;l been committed in
_ r~spect thrireof. Assuming argue do that the search was illegal, then also, it will not
.· affect the validity of the seizure and further investigation by the custom authorities or
the validity of the trial which followed on the complaint of the Assistant Collector of
cvste>ms. . .

19. Iri Radha Kishan v.· State of t;.P. MANU/SC/0146/1962 : (1963)IILLJ667SC , the
. [Link] of certain artides was challenged on the ground that the search was mac,:te in
·contravention .ofSections
. . .
103 and 165 Cr.P.C. The contention was repelled thus,-:-
. · ;,So ,far as the ·alfeged illegality of the search is concerned it is sufficient to· ,
say that even assuming that the search was illegal the seizure of the articles
is not vitiated .. Jt may be that where the provision of Sections 103 and 165,
Code of Criminal Procedure, are contravened the search could be resisted by
· the person whose premises are sought to be searched. It may also be that
·because of the [Link] of the search the Court may be inclined to examine
carefully the evidence regarding the seizure. Bµt beyond these two
consequences no f1,1rther consequence ensues."

. 20. Again in Shyam Lal·v. State of M.P. MANU/SC/0.248/1972: 1972CriLJ638, it was

· .held that even if the search is illegal being in contravention ·with the requirement of

· · ·26-08-2Q21 (Page 1oot 14) · [Link]

S~ction 16S Cr.P,<;; -th~t provision cec;1s~s to haye any application to the s1.1bsequent
sh~P$ in the investigation. This question has recently b~en exc;1mined by c;1 Three
-JuQge Bench of this Cpurt in State v. N:M.T. Joy Irnmac::ulate MANL)/SC/0446/24~4 : _
2004Cril,.J2S15 anc;i. the relevant portion of pa~c;1~raph 14 an(:) 15.1 are being
r~prqcJuced below : · ·
.n,;., .... ;.... The [Link] or otherwise of c;i
piec::~ of evidence has to be
Jydgec;I having regar~ to the provisions of the Evi~en~e Act. The Evioence Ac::t
qr .the Code of Criminal Prc;,[Link] or for that matt~r any other lc;1w in India
c;iQE;)S not exclude relevant evidence on the ground that it wa$ obtained vncler
an illegal search _and seizure. Challenge to a search art! seizure made unoer
· the Criminal Prqcedure Code on the ground of violatic;>n of f1,,mdc;1mental rights
unc;ler Article 20(3) of the Constitution was examined in M.P. Sharma v.
· Satish Chandra.:MANU/SC/0018/1954 : 1978(2)ELT287(SC) by c;1 Sench c;>f 8
J1,,1dges ofthis [Link]~ The challenge was repellec;I and it was hel<;I as under :
1
'A powerof search and seizure is in any system of jurisprudence an
· over-riding po·wer of the State for the protection of social secL,Jrity
and· that power is necessarily regulated by law. When the
Constitution makers have thought fit not to subject such reg1,1lation
to constitutional limitations by recognition of a f1,.mdamental right to
privcicy, analogous to the American Fourth Amendment, we have no
justification to import it, into a totally different fundamental right, !,y
some process of_ strained construction. Nor is it legitimate to c;1ss1,1rne
that the constitutional protection under Article 20(3) wo4ld ~~
defeated by the statutory provisions for searches."

15. The law of evidence in our country is modeled on the rules of evidence
·_ which prevailed in English Law. In Kuruma v. The Queen 1955 AC 197 an
a(:cusEJI was found. in unlawful possession of some ammunition in a search
conducted by two police officers who were not authorised under the law ',to
_ carry: out the searc.h. The question was whether the evidence with regG!rq to
the unlawful·: possession of ammunition could be excluded on the grou'rid that
the evrdence had been obtained on an unlawful search. The Privy .<:;ovn<;:il
stated the principle as under : '

"The test to be applied, both in civil and in criminal cases, in -

considering whether evidence is admissible, is whether it is relevant
to the matters fn issue. If it is, it is admissible and the Court is n9t
. concerned with how it was obtained".
15~1 This question has been examined threadbare by a Constitution Bench in
Pooran Mal v. Director of Inspection MANU/SC/0055/1973 -
f1974]93ITRSOS(S<=) and the principle enunciated therein is as under :

"If the Evidence Act, 1872 permits relevancy as the_ only test of
admissibHity of
evidence, and, secondly,' that Act or any other similar.
law i h force [Link] not exclude relevant evidehce on the grourid that it ·
was obtafned under an illegal search or sei;zure, it will be wrong to
invoke the sUpposed spirit of our Constitution for excluding such
evidence. Nor is it open to us to strain the language of the
Constitution,· because some American Judges of the American
Supreme Court have spelt out certain constitutional protections from

. ,. . ,.. ,. ..

. 26,08-2021 (Page 1_1 of 14) . [Link] Sameer Parekh

 ,µ

,· ,.. nu._.atftl~
!~. . .
-r .

. the provisiq~~- of the American C9nstitLJtio111. SQ, 'neither qy invoking

the. spirit of our Constitutipn nor by a ~trairned [Link] of any of
the [Link]~mental rights Ci;'ln we spell 01,Jt the E:?xc;:lusion of evidence
obtained on an illegal search.

So far c)Slndii;I is concerned its law of evidE;mce is moqeled on the

• n,iles of evic;:lence which prevailed in English l,.aw, and Courts in Jr,dia
and in .li;:ngland have consistently reflJsed t9 ex<;:ll,lde relev~rnt
evidence· merely' on the ground that it is obtained bV illegal sear~h qr
. seizµre .. Where the test of admissibility of evidence lies in relev?)ncy,
vnle$s 'therejs an express or necessarily implied, prohibition in the
Constltution. cit other law [Link] obtaine<;l as a result; of illegal
sear<::h or sei_zure is not liable to be shut out."

· 21. In the United States the law regarding illegally obtc;1ined evidence has been stated
-~~- ~nder in 29 American Jurisprudence 2d (para 40~):

"4Q$. Generally
· In crirninal prosecutions, in particular, evidence is freq1,Jently obtaineq by
methods thc;1t are morally reprehensible and offensive to fc;1ir c;:lealing, uncler
<;:ircumstances whic;:h meet with disapprobation of the courts, and ir:, many
i'nstances, by means that are illegal. However, it is a rule of the common law
that the admissioiUty of evidence is not affected by the illegality of the means
a
t;>y which itis obtained, and if evidence ,offer'ed in .support of fact in issue is
relevant and otherwise competent, it is generally admissible,' though· it may, •.1

· .• have been [Link] unethically, wrongfully, or 1,mlawfully, · unless its

adrnis1'ion will violate a constitutional guaranty of the person against wh'om
its admission is sought, or is in contravention of a statutory enactmentof th~
jurisdiction. Accorqingly, the exclusion of evidence logically relevant in c;1
c;:riminal prosecution can be justified only .by an overriding public;: polic;y
expressed in the Constitution or the law of the land. The underlying principle
admitting evidence ·wrongfully or illegally obtairied is that the oojection to ari
offer of proof made upon the trial raises no question other than competency,
relevancy,. and materiality, and the court cc1nnot enter upon the trial of
c;:ollateral issue.s as to the source from which the evidence was obt9 ined. It
. has also been _$.aid that a far-reaching miscarriage of justice would result if
the public were to be denied the right to use convincing evidence of i;I. ·
. defendant's guilt because it had been brought to light through the excessive
zeal. of an .individual, whether an officer or not, whose misconduct must be .
deemed his own act and not that of the state ............ " ·
' The Fourth Amend merit ~f American Constitution' g~arantees the "right of th~ people
to be secure in their persons, houses, papers and effects and against unreasonable
searches and seizures." On the basis of the aforesaid Constitutional provision, the
... Vnited · States Suprem·e Court in some earlier decisions laid down the n,.Jle th~t
. evidence obtained by means of an unlawful search and seizure by fe9eral officers i$
not admissible against an accused in a criminal prosecution in a federal court when~
timely objection to the use of such evidence has been made. However, in Stone v.
[Link].l 428 US 465 th.e aforesaid view was reversed and it was held that the
e!pplication of th,e rule deflects the truth fincling process and often frees the gyilty.
. The· ·disparity· in particular cases between the erro,r committed. by the police officer·
ancj: the windfap affon:led to a guilty defendant by application of the rule is contrary

·· 2Q·08-2Q21 (f?a~e 12 of 14) [Link] Sam~er f?ar~kh

 \'Pt
1Z1 manupCltra®
11

to the ic;lea 9f propQrtionality thc;1t is essential to . the corn;:ept of jl,Jsti~e. lt was

obs~rved that although the rule is thought to deter LJnlclwfwl polic;:e activity in part
thro1Jgh the n1,1rturin9 of respect for Fourt.h Arnendm~nt values, if appliec;l
ingiscriminately it may well have the opposite effeqt of generating disresp~ct for the
law ano administraUo.n qf justice. The Court quoted, With approval the following point
hi'ghlighted, by Justice Black, in hi$ dissenting opinion in an ec1rlier decision rendered
in Ka\)fman v. l)nited States 394 US 237:
"A claim of illegal search and seizure under the Fo!,Jrth Amend,mt;?nt is
crucially different from many other constitL.J~ional rights; ordin?:iril.y. the
evidenc~ seized c:an in no way have peen· rent;lered untrustworthy by the
means of its seiz1i~e and indeed often this evidence alone establishes beyonp
yirt~ally any shadc:hiv of a doubt that th' defendant is guifty," ···
22. The Cpnstitution Bench decision in Pooran Mal v. The Director of Inspe~tipn
MANlJ/SC/0055/1973 : [1974]93ITRS0S(SC) was considered in Stc;1te Qf PL,mjab v.
i:~ld~v Singh MAN,U/SC/0981/1999 : 1999Cril,.J3(?7:2 and having regard to the schem€
· of th~ Act c;ind especi~lly the provisions of Section 50 thereof it w9s held that it wa$
not possible .to hold that the judgment in the .said case can be $aid to. hc;1ve laid gown
that th~ "recovered illicit article" can be used as "proof of ,,mlawful possession" qf the
CQritraband seizeg from the suspect as a resylt of illegal search and !lieizur~.
Qth~rwise, there wovld ·be no distinction between recovery of illicit dr1,Jgs, ~tc;., seizec;J
dyring c:1 seQr~h condL!cted after following th,; provisions of Section SO of the A~t c;1n,d
· a: seiz'rJre. made .d1,Jring ~•search co·nducted in breach of the provisions of [Link];tion· so .. ··.
Meving regc1rd. to the scheme and the language used a very strict view of Section 50
9f the Act, was takeri and it was held that failure to inform the person i:oncernec;l of
hi$ [Link] as emam=;iting·from Sub-section (1) of Secti:on 50 may render the recQ\(ery Qf
· t.h~n;:ontraband suspect and sentence of an accused bad and unsustainable in law. As
a corollary, there is ·no warrant or justification for gi,ving an extended meaning to the
· · word "person'! occurring in the same provision so as to include even some bag,
article 9r container or some other baggage being [Link] by him .
. 23_. Coming to the merits of the appeal, the High .Court allowed the appeal on the
· finding that the report bf the Chemical Examiner had to be excll,Jded anc;I that there
was non compliance of Section 50 of the Act. The learned Judges of this C:01,Jrt, who
• hearo · the appeal earlier, have recorded a unanimous opinion that the report ·9f th~
Chemfcal Ex€!mirier was admissible in evidence and could not be extluc;led. ~n view of
·. the ·discwssioh macte earlier, Section so of the Act can have no applicc;1tion on the
· fa~ts c1nd circumstanc;:es of the present case as' opium was allegedly rec;over~Q from
. · the bag, \i\/hich was being carried by the accused. The High Court·did not examine the
testimony of the witnesses and other evidence on merits. Accordingly, the matter has
··to be remitted back to the High Court for ,a fresh hearing of the appeal.

24. In the result, the appeal is allowed. The judgment and order dated 26.8.199(> qf
the High Court is set aside. The appeal preferred by the respondent Pawan K1,m1ar
· shalLbe heard afresh by the High Court in the light of the findings recordec;I by ihis
Court
.· . and
.
in accordartce:
. . with law .
. . ..

crhninal
. .
Appeal
··. N9. 375
..
.
of 2003
. . . '
. According !O .the case Qf the prosecution, Ram Ni was, SHO Police Station Pr'libanga.
··. received informati<;mthat the accused who was indulged in smuggling of opi1,1m was
·.. ·standihg·at the bus·stand; A police party reached the main bus stand at abovt 7.10
. .,

. •. •. I .

2p-0a•2021 (Page 13 of 14) ·WIN'W,[Link] SameE;ir Flarekh

 ..._,®
nHlftU.pi11.-w

·.. ,-p:r:n. and .fquno··t~e. ~ccµsed stcinding with an attache in his hand, A writte,n notice
' ' w~s th~n given to-the_ e~cuse<=I that his attq<;:he;.Cc;IS(j! wlH be searched as Information
has peen r~c~lved. that .the same contc:llns opium. He wa~ also a~ked wh~ther he
w.·-_.9Ul<J_· ·l•[Link] searc_h·•.:to-be conduc;ted·. before a Mag_ .istrat_e or a Gazetted Office.r; T.·. his
. • fac;;t Wa$ a so meAtioned ln the notice. The accused said that he did n9t want to be
· searched ~efore any Magistrate or Gazetted Officer and the SHO could cc;1rry qn the
•. search. This stc;:1tement of t:he accused was signed by him. Th~ search of the attache
rE;yeal~d 5 kgs. of opium. After conducting other formalities and investigation of the
c;a~~, the _a<;:cused was· put l,Jp for trial. The learned Sessions Juoge q:rnvict~d the
~tcu~ed 1,.m{;ler ~ection 8/18 of the NDPS Act and sentenced him t~ 10 ye?ir~ RI anc,l a
fin~ Qf Rs. 1 lakh. The High Court by a very cryptic judgment held that the pr9yi5ions
9f $tcti9n SO of the NDPS Act were not complieg with as the aq;:use<;I was not
.. infQrhlE;g of his right Jo be searched in presenc~ of a Magistrate or a Gaz~tt~d Officer
~rig zicc.:ordingly allo·we<:l the appeal and set aside the conviction and sent~nce Qf the
. ~<;,usE:?d. · · · ·
· Fpr Jhe reasons discussed earlier, the view taken by the High ,Covrt canrw~ be.
sv$tainecl as it was a casE= of search of an attache which was carried by the [Link]~.
The appeal Is accordingly allowed and the judgment'and order dated S,10,2001 of the
High Court is se.t asid«:l, The m?itter is remitted back to the High c;:ovrt fpr a fre$h
c;i;rnsideratipn of the ap·peal on merits and in accordanc;e with law.

© Manupatra Information Solutions Pvt. Ltd.

•' . . ..
·• ._ · 29·0~•2021 (Page 14 of'14) www.man1,Jpatra.c;om $ame~r [Link]
 REPORTA8LE
. ,-
iN THE SUPREME COURT OF IN:OIA
,_
_C:R~MINAL APPELLATE '7URISI;>I<;TIQN

- CRIMINAL APPEAL NO. 27~ OF a997-

Arif Khan @ Agha Khan ... Appellant(s)

Versus

State oluttarakhand _... Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. Thi~_ appeal is filed by the accused against the

final jlldgment and order dated 26.06.2006 passed

,_
. .

_ by the· High Court of Uttaranchal at Nainital in

Criminal Appeal No.368 of 2004 whereby the High

- Court confirmed the judgment and order dated

09.11.2004 passed by the Additional Sessions

Judge;' Fast Track Court II, Udham Singh Nagar in

 Special Sessions Trial No.20 of 2003 by which the

appellant-accused was convicte,d for the offepce

, pµ[Link] under Section 20 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 (hereinafter

-
- .. . . .

·_ ·_ ;eferre<:Lto as "the NDPS Act'') and sentenced him to

undergo rigorous imprisonment for 10 [Link] and a

-fine ofRs.1,00,000/-.

2 . - -ln order to appreciate the issue involved in the

·appeal, few facts need to be mentioned hereinbelow.

3. . In short, the case of the p~osecution is as

· under:· _: -

4. Ori · 23.11.2002, a secret information was

received · in P.S. Kichha from one unknown

informant that one person is travelling in a

_· roadways bus carrying with him some contraband

articles: .The secret informant' also gave· inform,atfon

·that the person concerned_ would get down near the

 raihvay:[Link] from the Bui and would approach

to\.\Tarcls 9- place called "Chowki Pul Bhatta," along

..
· with contr_aband article.

5. The raiding party headed by SHQ-Harish

. .

. Mehra,. who was on duty at P.S. Kichha ~ong with

the police officials on duty accorc:iingly left for the

place irif9rmed by the informant.

6. On reaching the informed place, the raiding

party waited for sometime and thereafter spotted

the person concerned, who was approaching

, towards. ~he place informed to them. The raiding

·party. intercepted the 'person concerned.

7. Thereafter, the accused was asked by the

police personnel of raiding party as to whether he is

in poss~ssion of contraband "Charas". The accused

admitted that he is in possession of "Char as". On

appreheilding the accused, he was informed by the

 police persqnnel that he has a, legal right to b~

searched: in the presence of a Ga,zetted Officer or a

· Magistra,te to which the accused replied that _he has

·a faith on the raiding police party an<l Gonsented to

be searched by them.

8. . The raiding police party accordingly obtain~d

his consent in writing to be searched by the raiding

police party. The raiding police party then searched

. . .

the accused which resulted in seizure of. ''Charas''

weighing
. .
around 2.5 K.G. in quantity from his body.
.

., 9. It is this incident, which gave rise to

. .
prosecution of the appellant (accused) for

commission of the offence punishable under Section

· 20 of .the NDPS Act in Special Sessions. Trial I

No.20 /2003. After i~vestigation, • the prosecution

filed the charge sheet (Ex- 11) against the appellant

14 .
 and ·exa:nriined S witnesses to bring horne th~ charg~

levelled against the appellant.

' 19. By .order dated 09.11.2004, the Aqditional
Sess,ions
. / . .
Judge/ Fast Track Co1Jrt II, Udham Singh
.

· <Nagar. h~ld that the prosecution was able. to prove

the·· case ·.• beyond reasonable. doubt. against· the
;

appellant and accordingly convicted him for the

offences punishable under Section 20 of the NPPS,

Act· and sentenced hirn to undergo rigorous

imprisonment for 10 years · and a fine of

Rs. l,0()~000 /-.

11. . The ~ccused felt aggrieved and filed appeal in

. .

the High Court at Nainital. By impugned judgment,

. - . .

the High Court dismissed the appeal and upheld the

. .' .

. ·order pf Additional Sessions Judge, which has given

rise tofiling of the present appeal by the acc;:,usecl by

way of special leave in this Court.

 12. Heard Mr. J.C. Gupta, learned senior counsel

for· the appellant (accused) ,and Mr. · A$hutosh

Kuma,r . · Sharma, learned counsel for the •

respondent-State.

13. Learned counsel for the appellant (accused)

while assailing the legality and correc;:tn~ss 9f the

. impugned judgment contended that both the Court$ I.

below .er:fed in holding the · appellant guilty of

commission of the offence in question and thus

erred .in convicting him (or the alleged offence under,

1
the NOPS Act.

14. Learned counsel contended that the

prosecution has failed to ensure mandatory

. .

compliance of Section 50 of the NDPS Act inasmuch

as the alleged recovery/ search of the contraband

· (Charas) made by the raiding police party from the

appellant's body was not done in accordance with

 the procedure prescribed under Section 50 of the

NDPS - J\ct which according ·to learned [Link] 1s

I [Link] - as held by this Court in th~ case of

· Vijaysinh Chandubha Jadeja vs. State Qf Gujarat,

2011(1} sec 609.

· Ls.· · ·Learned counsel urged the

search/recovery of the alleged contraband from the

appellant· ought to have been made only in the

presence of either a Magistrate or a Gazetted Officer

' .

_- oniy'. _. ··

16. It : was urged that since admittedly the

prosecution did not make the search/recovery from

· the app~Uant in the presence of a Magistrate or a

.
Gazetted Officer and, therefore, the alleged recovery
.

· - of the contraband "Charas" from the appellant is

. '',

. . .

· ·rendered · illegal being 1n contravention of

requirements of Section 50 of the NDPS Act thereby

 entitling 'the appellant for an acquittal from the

charges: .

J7. In . reply, learned counsel appeann$ for the

respo11dent (State) supported the re~soning and

con<;lusion arrived at in the impugned [Link]

.
a..n.d '. therefore, prayed for upholding of the

· impl,ignedjudgment.

J 8. :Hav~ng heard the learned counsel for the

.....
parties _and on perusal of the record of tpe case, we

are inclined to allow the appeal a,nd while setting

aside . of the impugned judgment acquit the

· .·. ' appellant

.
from the' charges in question.
.

19. The short question which arises for

consideration 1n the appeal is whether the:

.search/recovery made by the police officials from

· . the appellant (accused) of the alleged contraband

·. . .
,. (chara.s). can be held to be in accordance with the

[a
I .
 proced1,1re prescribed u,nder Section 50 of the NOPS

Act.

20. In ·other words, the question that arises for

con~ideration 1n this appeal 1s whether the

prosecution was able to prove that the procedure

prescribed under Section 50 of the NDPS Act wa~

followed ·by the Police Officials in letter and· spirit

while making the . search

'
and. recovery oLJhe ' .

.
. '
·contraband "Charas" from the appellant (accused).

21. What is the true scope and object of Section 50

·of the NQPS Act, what are the duties, obligation and

the powers conferred on the authorities under

Section · 50 and whether the compliance of

requirements of Section 50 · are mandatory or

directory, remairis no more res zntegra and are now

· settled _by the · two decisions of the ~onstitution

· Bench .of this Court in State of Punjab vs. Baldev

I
 Singh.(1999) 6 SQC 172 and Vija.y$inlt Chand\lbha

Jadeja (Sllpra).

·. . 22. .Indeed, the latter Constitution B~nc;;h decision ·

. '
.•.. r~ndered ·. in the case of [Link] C.,handu~1'a

· '7adeJ• . (~upra) has settled the [Link]

questions ·· after taking into considvrati9n~ ~11

previoµs case law on the subject.

43. Their Lordships have : held 1n Vijaysi;nh

·. Chandubba Jadeja (supra) that the requirements of

Sectioo: SO of the NDPS Act are mandatory and,

thereforer the provisions of Section 50 ._ must be

. . .

strictly complied with. It is held that it is imperative

1
on the :part of the Police Officer to apprise the

person intended to be searched of his right under

. Section 50 to be searched only before a Gazetted

· officer. or ·a Magistrate. It is held that it is equally

:mandatory on the part of the authorized officer to i_

· make the suspect aware of the existence qf his right

to be searched· before a Gazetted Off~cer or · a

Magistrate, if so required by him and this requires a

stric;t compliance. It is ruled that the suspect p~rson

~ . . . .

may or· may not choose to exerdse the right

provided to him under Section 50 of the NDPS Act

but so fw as the officer is concern<:!d, ari obligation

•is cast upon him under Section 50 of the NOP$ Act
I
to apprise the suspect of his right to be searched

before a .Gazetted Officer or a Magistrate. (See also

Ashok Kumar Sharma vs. State of Rajasthan,

~013 .(2) ~CC 67 and Narcotics ControllBureau vs .

. Sukh :;:p~v Raj Sodhi, 2011 (6) SCC 392)

· 24. Keeping in view the aforementioned principle

of law laid down by this Court, we have to examine

· the question arising in this case as to whether the

:prosecution followed the mandatory procedure

 prescribed under Section 50 of the NOPS Act while
,,
making;: search and recovery of the [Link]

."Chara~" from the appellant and, if so, whether it

· was dcn1e in the presence of a Magh,trate .or a

..Gazetted Officer so as to make the search and

recovery of contraband "Charas" from the appellant

in cqriformity with the requirements of SeQtion 50.

25. In our considered view, the evidenc:e adduceq

. by · the . prosecution neither suggested, an'd nor

·. proved that the search and the recovery was made

· .from lhe. appellant in the, pres!ence of. either a

'

Magistrate or a Gazetted Officer.

26. It· is the case of the prosecution and whi~h

.. · found . · acceptance by the two Courts below that

' ''

since the appellant (accused) was apprised of his I

. '
right to be searched in the presence of either a
Magistrate or a Gazetted Officer but despite telling

12 I
.. ·.· I
·.. /'

· I him abo-µt his legal right availa,ble to him under

Section 50 in relation to the search, the appellant

(ace-used) gave his consent in writing to be searche~

.··by the police officials (raiding p~ty), the tw9 Cc;>urts

.·.

below came to a conclusion that the reqµirements of

· .· Secti~n ·50 stood fully, complied with a,nd hence the

. . . :=· ' I, .'

appellant· was liable to be convicted for the offence

. punishable under the NDPS Act.

27; We do not agree to this finding of the tw9

Courts· below as, in our opinion, a search and

. _recovery_ made from the ·appellant . of the allegec;l

contraband "Charas" does not ~atisfy the mandatory

requirements of Section 50 as held by this Court in

· the case of Vijaysinh Chandubha Jadeja (supra).

this we say for the following reasons .

. 28. First, it is an admitted fact emerging from the

record . of the case that the appellant was not

I
 produced before any Magistrate or Gazette<;! Officer;

Second, it is also an admitted fact that due to the

•
aforementioned . first reason, the search and

recovery of the contraband "Charas" was not :made

from the [Link] t in the presence of any Magistrate

or Gazetted Officer; Third, it is also an admitted fo,ct

that none of the police officials of the raiding party,

. who recovered the contraband "Charas" ·,from him,

was· the Gazetted Officer and nor they coul<;l l;>e and, ·

therefore, they were not empowered to make search

and rec·overy from the appellant of. the contraband

"Charas" as provided under Section 50 of the NOPS

Act exc~pt in the presence of e'ither a Magistrate or

a Gazetted Officer; Fourth, in order to make the

search and recovery of the contraband articles from

. the body of the suspect, the search ahd recovery

has to be in conformity with the requirements of

 Section · 50 of the NOPS Act. It is, therefore,

mMqatory for the prosecution to prove that the

searchar1d recovery was made from the appellant in

..
· __the .preset?,ce of a Magistrate or a Gazettep Officer.

29. Tho~gh, the prosecution examin~d ~s many as

five police officials (PW-1 to PW-5) of the raiding

police party but none of them deposed that the

search/recovery was made in··. presence of any

· Magistrate or a Gazetted Officer .

.. 30. · For the aforementioned reasons, we are of

the considered opinion that the prqsecution was not

I able to .prove that the search and recovery of the

contraba,nd (Charas) made from the appellant was

irt accord$.nce with the procedure prescribed under

., ·Section 50 of the NDPS Act. Since ·.the

rton-compliance of the mandatory procedure

prescribed under Section 50 of the NDPS Act is fatal

l I

'·. w
I

to the prosecution case and, in this case, we have

found that the prosecution has failyci to prove the

. cpmplianc~ as required in ·law, th~ [Link] is
. . ,; .

entitled to claim its benefit to see~ his qtcquittal.

31. In· the light of the foregoing di~<;U$Sion, the

appeal ... succeeds and 1s ajlowed. Impugned

. Judgment. is set aside: As a conseq1Jence thereof, the

appellanfs conviction is set aside and he is

•acquitted of the charges in que·stion.

(R.K. AGRAWAL)

........................................... J.
{ABHAY MANOHAR SAPRE)
NewDelhi~ .
.April 27, 2018
 IN THI;: SUPREME COURT OF INDIA
. CRIMINAL APPELLATE JURIS[)ICTION

·. . CRIMINAL APPEAL No. 459 OF 2017

. '

I
$.K RAJU @ ABDUL HAQUE @ JAGGA ..... APPELLANT

Versus
..
I.
·.· . :.STATE OFWESTBENGAL · .... ;RESPONOf;NT

JUDGMENT

Dr Dhananiaya Y Chandrachud

1 the pres~nt:~ppeal, by special leave, is directed against a judgment

dated 19 Febru~ry· 2016 of a Division Bench [Link] Calcutta High Col,Jrt. The

High Court upheld the conviction of the appellant by the Additional Sessions

.Judge (,; 1ASJ'')a~d :~pecial Court under the ~arcotic, Drugs and Psychotropic

. Substances Act 1985 ("the Act")~ On 15 February 2014, the ASJ had convicted

the appellant of an offence punishable under Section 20(b )(ii)(C) of the Act. The

1
 ..

·/ ·. .appellaritwas
.· .
.
.se~tenced, to 14 years of rigorous
,,•. . . .
imprisonment' and dir~cted to : . .

.p~y $ fin~ [Link] 1,40,000.

2. ·The facts of the case are as follows. On 15 November 2011, Sul,-

_Inspector Prasant~ Kr. Das, Narcotics Cell, DD (PW-2) received information that
·.· . a drug dealer [Link]. be in the vicinity of Tiljala FalgtJni Club, 1388/1, Picnic

· ·· .. ·Garden· Ro~d. ·• nea,r' 'Tiljala Police Station to Sllpply narcotic drugs ih . the' ·

·.··. ·afternoon. PW~2sought permission from the Assistant CommissionerofPolic~.

· Anti~Ntrcotics Department, DD to organize a rai',i (Exhibit-2). Permission wc;i~

g_rante<;;l t;>y the·superior officer on the same day and a raidin~ t~(3m corn~istin~

· of PW-2 and others reached the spot at ?!bout 12.59 pm. At around 1.40 pm,

··the source of the information pointed out to the appellant who was coming ~long

-Picnic
:.
Garden R~~d. The appellant was intercepted and detained
. ,:,· ''
immtdiately·
. '

. · ·_··by the raiding party in front of Falguni Club. The appellant was. informed ab9ut

the reasons for. his detention and the Identities of the raiding party were
.
·

.disclosedto him. s·ubsequently, the appellant also disclosed his identity to the

raiding party. PW~$ was one of the two independent witnesses who agreed to

·. be a witness fo thi~ -search. The appellant was informed about his legal riQht to
. . . . ·. . .. . L
· · · ·. be se~rched eitheriri the prese·nce of a magistrate or a gazetted officer (!=xhipit- .
. ·. t _' ·. ,·, . . . . , . . ._. ,· ') ' ',' - ; ;·! i

.·. · 3). Jhe appellant ·opted for being searched by a gazetted officer. A gazetted

· ··officer, Inspector Joysurja Mukherjee {"PW-4"), arrived on the scene at about

•· 3.40 pm. He provided the appellantwi~h a "second option". The appellant was
· asked by_ PW-4 _whether he wished to J~e searched in the presence of a gazetted

2
· · offiqer Qr.(:I magil1trate (Exhibit-4). Qnce again, tl:le appellant consented to be

searcheq in the ~resenc~ of a gazetted offi9er. i;,w.a th~n inquired of the

·appellant whether h~ wc;1nted to search PW-2 before the latt~r wo1,1ld carry out

· . his search. Th~ ·appell{ant agr(;led to search. PW-2 bef9re his own searc,h wa~ ·
. . . . .

carried out:by PW,.,.2; No narcotic s1,1bstance was re~overed frQm the pers9n 9f
. - .
•' ,
-·
.

PW-2'. PW-2 recovered nineteen "deep brown / bl 9ckh,h br9kem rectangulc,~r

sheets" from a black polythene packet which was inside a biscuit c,olo1,.1r jute

·. b~[Link] the appellant was carrying in his right hanc;i. The sheE3ts were te~teQ.

•· bY. F'W-2 on the s·pot with the help of a test kit. The s1,.1bstf,lnce was f9ynd t9 be
chart#s. The substance was also weighed using a weighin9 scale. The appellant
1

·. . was [Link] to. b~ in. possession of 1.5 kilograms of charas. Cash amounting' JQ
. .

R$. ~,4QQ/'." was recovered from the trouser of the appellant.

3 · Learned counsel for the appellant has argued that there was non-

. compliance with. Section 42 of the Act. After PW-2 was intimated about the

appellant's arrival, he. sought permission from the Assistant Commissioner of

. . .
•. : Police, Anti-Narcotics Department. Upon receipt of the letter of permission' frpm .

. the Assistant Corri missioner, Pw.. 2 proceeded to the place of the oc<;urrence.

· PW-12 admitted in his cross.. examination that he was aware of the gravity of the

need for compliance with Section 42. However, apart from a letter seekinQ

permission to act onthe information which was addressed to a superior offi<;er,

. .. . he. did
.
not
. . . (it was\Jrged)
.
diarise
. it elsewhere. Learned counsel. urged that PW-1
. .

. .

? had ncifcompUed ,With the mandatory requirements of Section 42, as a r(:;)sUlt

3
 ' I

· · • Qf whi9h the trial stood vitiated. He has relied on the follt:;>wing decision~ of this

. Covrt to ·buttre$s the submission: Abdul Rashi~ Ibrahim Mam~uri v State of

.~ujarat (".Mansur."), 1 C>irectorate of Revenue v Mohammed Nisar ~olia ·

. ("Hc;>lia")2 and State of Rajasthan v Jagraj Singh ("Jagraj"). 3 .·

4. Learned counsel for the appellant also submitted that SeGtion 50 has also

[Link]~n complied with. According to him, not only was the bag of the appell~nt

,
$E;U:lF>chec;I, but a [Link] of the person of the appellant c;:11s9 resultEilQ in th~
, ··: , • '. , I ••

recovery of cash in the amount of Rs. 2.400/- from the left ·pocket of his trolJ$er:
. . .

· Heh9e, i~. was urged by the learned counsel that though Section 50 was

mandatorily required to be complied with, there was a breach of observance.

··. Since the appellarifwas merely given an 'option' by PW-2 and PW-4 to b~

searched before ,i:i gazetted officer and was [Link] that it was hi~ legal I

· ·•. ·. right to t:>e, searched before a gazetted officer or a magistrate, the search w~s .
. ·. . ·' '

· . it 'was urged·, ·vitiat~d. On this aspect, learned counsel for the appellant has

.r~lied on the folfowing judgments of this Court: Myla venrateswarlu V State of

' • ' ' I.

Andhra Pradesh ("Venkateswarlu"), 4 State of Rajasthan .v Parmanand

("Parmanand") 5 andNamdi Francis Nwazor v Union of India ("Namdi"). 6

. On the other hand; the learned counsel appearing on behalf of the respondent-

State· has support~d the judgment of the High Court and the legallty of the .

·.• 1 {2000) ? 'SCC !;i:13.

, .· ..2 c2008) 2 sec 370.
3 c2016) 11 sec 687. •
4
c2012) 5 sec 226.
· s (2014) 5 sec 345,
.• ..·..6 (1998) 8 sec 534.

4 .
'
 • , I.

99nvlcti,m. H~ arQued that since the search w~e carriEild 9ut in a public pl~ce,
. " ,•, . ' .

· · ~hi$ case falls solelywithin the ambit of Section 43 and complian9~ with Section

42 was not necessary. [Link] counsel for the respon<:ient-~tate a1$0 urged
· · that$ection 50 is ·not attracted when the search involves the search of a bag or 1
. an article [Link] a person .

. S .•
.
Section ~2 of the Act deals with the power of-entrv.' s~arch, ~eizure
- . . . :. '
and
• . arrestwtthout w~rra.r,t or authorization. It reads th1,.1s:

"42; Power of entry, search, seizure and arrest without warrant

or authorlsation.-

(1) Any such officer (being an officer superior in rank to a peon,

sepoy, or constable) of the departments of central excise,
narcotics,.. customs, revenue intelligence or any other
. qepartment of the Central Government including para"military
.··. , forc~s · or armed forces as is empowered in this behalf l;iy ·
. g~n~ral O( special order by the Central· Government, 6r any
,such 'officer (being an officer superior in rank to a peon, sepoy·
or constable} of the revenue, drugs control, excise, police or
any other department of a State Government as is empowered
ih this behalf by general or special order of the State
Government, if he has ,reason to believe from personal
knowled"ge or information given by any person and taken down
iri writing .that any narcotic drug, or psychotropic substance, or
controUedsubstance in respect of which an offence punishable
under this Act has been committed or any document or other
. article which may furnish evidence of the commission of such
[Link] any illegally acquired property or any document or
o_ther article which may furnish evidence pf holding any illegally
acquired property which is liable for seizure or freezing or
forfejt~[Link] Chapter VA of this' Act is kept or concealed in
any building, conveyance or enclosed place, may between
sunrise and sunset,-

(a) enter into and search any such building, conveyance or

place;

(b) in case of resistance, break open any door and remove any
r
[Link] to such entry;

{c) seize such drug or substance and all materials used in the
._ . manufacture thereof and any other article and any animal or

5
 conveyc:1nc;;e which he has reason to l;>elieve to be liable t9
confiscation under this Act and any doc;:ument or other article
• which he has reason to believe may fwrnish evidenc;e of the
commissitjn of any offence punishable under this Ac;;t or furnish
evidE,nc;:e of holding any illegally acq\Jired property which is
liat:)le for seizure or freezing or forfeiture under Chapter VA of
this Act;,and

(d) det~in and search, and, if he thinks proper, arrE:?~t any

person wh9m he has reason to believe to have cc;,mmitted any ·
offence punishable under this Act:

Pr()videtj that in respect of holder of a li~nce for manufac::ture

of · ni 9 nµfactured drugs or psychotropic substances or
controlled substances granted under this Act or any rule or
Qrdeir made thereunder, such power shall be exercised by an
officer not below the rank of sub-inspector:

Providec;t further that if such officer has reason to l;>elieve that

·a search warrant or authorisation cannot be obtained without
afforc;ling opportlJnity for the concealment of evic;lence or facility
·for. th.e: esc:;ape of an offender, he may enter and search such
building; conveyance or enclosed place at any time between
suAset and sunrise after recordin.g the gro1Jnds of his belief.

(2), Where an officer takes down any information in writing

under sub-section (1) or records grounds for his l;>elief under
the proviso· thereto, he shall within seventy-two hours send a
copy th~reof to his immediate official superior."

$action 43 of th~ Act confers powers on the empowered officer t9 seize a

·· substance and arr$st a suspect in a public place. It provides thus:·

' • ' ' ' ' I

·"43. Poifer of seizure and arrest in public place.- Any officer

of any ~[Link] departments mentioned in section 42 may-

(a) seize in any public place or in transit, any narcotic drug or

psychotropic substance or controlled substance in respect of
which .he
has reason to believe an offence punishable under
this Act .has been committed, and, along with such drug or
substance, any animal or conveyance or article liable to
confiscation under this Act, any document or other article which
he has reason to believe may furnish evidence of the.
· commission of ar:i offence. punishable under this Act or any
· document or other article which may furnish evidence of
holding• any illegally acquire:d property which is. Hable for
seizure or freezing or forfeiture under Chapter VA of this Act;

(b) detain and search any person whom he has reason to

believe to have committed an offence punishable under this

6
 Act; .ahd if such person has any narcotic qrug or psychotropic
' sybstanQ~ or controlled s1..1bstance in his pQssession and S\JCh
[Link] appears to him to be unla,wf1.,1I, am:;st him and l;'lriy
9ther person in his company.
Explanation.- For the purpQses of this secti9n, the
expres$iori "public place" inch,1C,es any p1,1blic
c<mveyance, hotel, shop, or other place inten(J4;u::I f9r ~SC:>
by, or acceJsil;>le to, the public." [Emphasis supplied] .

· 6· · We 9 re ·un~ble. to aocept the submission made by the le~rn~d coun$el for

· the· app~ll<:3nt that Section 42 is attracted to the facts of th~ pres$nt 9~se. In
r
.. i ·State· Qf Punjab' y· 8aldev Singh ("Baldev Singh"}!7 Chief ~ustioe Dr A S.
· · •·. An~nd speaking foi"a Constitution Bench of this Court, held:

"The material difference between the provisions of Section 43

and Section 42 is that whereas Section 42 requires
·ricording of reasons for belief and for taking down of
information received in writing with .regard to the
commission of an offence before conducting search and
seizure, Section 43 does not contain any such provision and
as such while acting under Section 43 of the Act, the
emp<>wered officer has the power of seizure of the article
etc: anc( arrest of aperson who is found ; to be 'in
possession of any Narcotic . Drug or Psychotropic ,
[Link] in a public place where such possession
[Link] him to be unlawful." [Emphasis supplied]

·. In· Narayanaswamy . Ravishankar v · Assistant Director, Directorate of

Revenue lntelligence, 8 a three judge Bench of this Court considered whethE;ff

· ·.· the _empowered ·offirier was bound to comply with the mandatory provisions of

Secfion42 before :recovering heroin from the suitcase of the appellant at the I

· airport and· subsequently arresting him. Answering the above question in the

· •. negative, the Court held:

' ..

·.·. 7 (1999) (l sec 172.

· .. a c2002) a sec 1.

7
 'iln the instant qase, according to the ooc1,1ments on rec9rd
ancl the evidence of the witnesses, the search and SE}izure
tqokplace at the airport which is a p1,1blic place. This being SQ,
. it isthe:: provisions of Secticm 43 9f the NOPS Act which would
be ,;1pplicablE?. Fl,Jrther, <;1$ $ection 4i of the NDPS Act wa$ not
appliGable ih the present case, the seizure havin9 bE?en
effected in a public place, the question of non-compliancljl, if
any, of the provisions of Section 42 of the NPPS Act is wholly
irrelevant."

.
'1n'·Krish~a KamNar (Smt) Alias· Thakuraeen v State
. ~ .
ot' R~jasthan, 9 $ two
' '
' '

jvdge Bench of this Court considered whether a police officer who had 'prior

information was required to comply with the provisions <;>f SeQtion 42 oefore

· $eizing contrabflnq and arresting the appellant who was travellin9 ~m a

motorcycle °.n the highway. Answering the above question in the negative, the,·

[Link] held:'

· "[Link] 42 comprises of two components. One relates to 'ttie

basis of information Le.: (i} from personal knowledge, and (ii)
information given by person and taken down in writing. The
second. i.s that the information must relate to comitiissicm
of offence punishable under Chapter IV and/or keeping or
conceairrient of document or article in any building,
conveyc1n_ce or enclosed place which may furnish
·· · evidence of commission of such offence. Unless both the
components exist Section 42 has no application. Sub-
. section (2) mandates, as was noted in Baldev Singh case that
· where an officer tl;3kes down any information in writing under
· ·. sub"s~ction (1 )· or records. grounds for his belief under the
proviso thereto, he shall forthwith send a copy thereof to his
immediate official superior. Therefore, sub-section (2} -only
comes into operation where the officer concerned does the
enufl)erated acts, in case ..any offence under Chapter IV has
been c6rrimitted or doquments etc. are concealed in any
building, ·conveyance or enclosed place. Therefore, the
commission of t_he aet or concealment of document etc. ·
mu~t pe in any building, conveyance or enclosed place."
[Emphasis supplied]

'
9 (2004) 2 set 608; R~jendra v State of M.P •• (2004) 1 sec 432.
8
 An empc;,wered <;>fficer under Section 42(1) is obligated to r~duce tQ
1
·.· writing u,e inforn1ati()n receive9 by him, only when an offenoe pt,Jnisnable under
• ·, >. • •• •

th~
.
Act h~s l;>een committed in any building, conveyance or an enclqsed. place,
' ..

or wh~n c;1 document or an article is concealed in a ouilding, conveyance or ~n ·

. , : enqlosed place;:Corripliance with Section 42, including rJcording of information

received by ·the empowered officer, is not mandatory, when an offence

> .pµnishat?le unqer the Act was not committed in
. . . . ' . .
abuilding, cqnv~y~nce Qr c;1n
enplqsed pia~e. Section 43 is [Link] in situ~tions where the seizure and

. c)rrest r.1re conducted

..
in a public place, which inclyc;tes any public.i;::[Link],,
. ' ,

·· · hot~I; shop, or other place intended for use by, or accessi~IEi! tp, the put>Hc.

8 The appellant was walking along the Picnic (Sarden Road. H!;l. WG"l$

intercepted and. de1ained immediately by the raiding party in front of Falguni

,·club, which was not abuilding, conveyance or an enclosed place. The place of
.. · occorrenoe.-was
. . ·
accessible
.
to the public and fell within the [Link] the phrase
.. .
· / '

· · "public place" inthe~xplanation to Section 43 .. Section 42 had no application:

· 9 · The cases relied on by the learned counsel for the appellant will also not
. . .

• .apply. in the [Link]. the facts before us. In Mansuri, an auto;.rickshaw driver
. •'

was intercepted by police personnel. Four gunny bags of charas were

. . . '

. recoveredfrom the-~uto-ricksh;;:iw. The police officer who had prio'r1nformation ..

' • •• 0

·. ~bout transportation 'of some narcotic_ substance, had neither taken down the

inf9rmation before carrying out the seizure and arrest, nor apprised his superior

9
 e>fficer. Hecorite_n~ed that the action taken by him was under ~ection 43 and
not Section 42. Rejecting the argument of the State,. this Court held th~t
·. /'

complic;m·ce with Section 42 was required a$ the auto-riGkshaw was a priv~te

vehicl~ and not· a: public conveyc;1nce as contempl9ted I,.mder Section 43.

Similarly, in Jagraj, contraband was recovere9 frpm a jeep which was

interc<;ipted by police personnel on a public road after receiving prior

information.
. .
The police officer .who had received the inforrriati~n, a·dmitt8d to' not
' . ' '

tc}kin~ it ·<;town Ir{' writing, contending that Section 43 woµld be applicable.

·.. ReJectinQ _the argument of the State, this Col,Jrt held that the jeep which was

intercepted, was n9t a public conveyance within the meaning of Section 43 and
compliance with .Section 42(1) was therefore rnanc;iatory. In H~lia, Mandr~x
. .
[Link] were recovered from the hotel room of the respondent. The inform,tion

·• W~$-not reduced. to writing by the officer who had first received the information.' .

. The State claimed that compliance with Section 42 was not required as the hotel

· was a public place~ -Rejecting the submission of the State, this Court held that

while a hotel is a public place, a hotel room inside it is not a public place. This

Court held thus:

"Section 43, on plain reading of the Act, may not attract the
. rigours of Section 42 thereof. That means that even sub)ective
satisfaction on the part of the authority, as is required under ·
sub-section (1) of Section 42, need not be complied with, only
because the place whereat search is to be made is a public
place. If Section 43 is to be treated as an exception to Section
42, it is required to be strictly complied with . . . It is also
possible to contend that where a search is required to be
m_ade at.a public place which is open to the general public,
Section 42 would have no application but it may be
another thing to contend that search is being made on
. prior information and there would be enough time for
compliance of reducing the information to writing,

'10
 informing the same to the superior offi~,r and c;,Qtain his
permission as also recording the reason• theref9re
co1,1pled with the fact that the place which is req1,lired t9 Qe
searche.d is not ,;>pen to p1Jblic altho~gh situated in a
· p1,1blic "place as, for example, room Qf a hotel, whereas
h9ter if a public place, a room occ1,1pie~ by a guest may
not t>e, He Is entitled to his right of privacy. Nobody, even
· the staff .of the hotel, can walk into his room without his
perniissi9n. Subject to the ordinary activities· in regard to..
maint~n-ance and/or housekeeping of the room, the g1,Jest is.
entitledto maintain his privacy." [Emphasis supplied]

There is hence'no substance in the first s1..1bmission.

10 Section 50 of the Act deals with conditions under which search of per$Qn$

shall be conducted ... lt states:

"50. Conditions under which search. of persons shall be

conducted.-

(1) When any officer duly authorised under section 42 is about

to s_earch any person under the provisions of section 41,
section 42 or section 43, he shall, if such person so requires,
take such person without unnecessary delay to nearest
_Gazetted Officer of any of the departments mentioned in
section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person
untii he_ can bring him before the Gazetted Officer or the
·Magistrate· referred to .in sub~section (1 ).

. (3) Th~ Gazetted Officer or the Magistrate before whom any·

such"person is brought shall, if he sees no reasonable ground I
for search, forthwith discharge the person but otherwise shall
direcithat search be made.

{4) No female shall be searched by anyone excepting a female.

• (5) When an officer duly authorised under section 42 has

reason to believe that it is not possible to take the perspn to be
searched :to the nearest Gazetted Officer or Magistrate1without
thei: possibility of the person to be searched parting with
pos~ession of any narcotic drug or psy,chotropic substance, or
. ·1;:ontroil~d substance or article or document, he may, instead
.:of •t~[Link] such person to the nearest· Gazetted· Officer or
Magistrate, proceed to search the person as provided under

11
 sectron10Q of the Code of Criminal Procedure, 1973 (2 of
1974).
(6}After a search is con9ucted under sub-section (5}, th.I?
· officer shall record the reasons for such belief which ·
necessitated such search al"ld within sl:lventy-two hours send .
a copy thereof to his imme~iate official superior."

According to Secti~.m 50(1 ), an empowered officer shQuld nece$sarily inform the

svspect c;1bout his regal right, if he so requires, to be searched in th~ pr~sence

. .
of a gazetted officerora magistrate. In Vijaysinh Chandubha Jadej~ [Link]
. , ' .·. , ' '

pf Gujarat J"[Link]"), 10 a Constitution Bench of this Court interpreted I

.· s·ection 50 thus:/ . ·..

"The .mandate of Section 50 is precise and clear, viz. if the

person intended to be searched expresses to the authorised
officer his desire to be taken to the nearest gazettec;l C'lfficer or
[Link], he cannot be searched till the gazette~ officer
or the. Magistrate, as the case may be, directs the authorised
C>ffic~r td do so ... In view of the foregoing discussion, w_e are
· . ofthe firm opinion that the object with which right under Section
50(1} of. the NDPS Act, by way of a safeguard, has been
cqnferr~d on the suspect, viz. to check the misuse of power, to
. avoid h~rni to innocent persons and to. minimise the allegations
· · of planting or foisting of false cases by' the law enforcement
· agencies, it would be imperative on the part of the empowered ·.
officer to
apprise the person intended to be, searched of his
· right to be. searched before a gazetted officer or a Magistrate.
We have no hesitation in holding that in so far as the obligation
of. the a\Jthorised officer under Sub-section ( 1) of Section 50 of
the NOP$· Act is concerned, it is mandatory and requires a
s!rict compf iance. Failure to comply with the. provision would .
render the recovery of the illicit article suspect and vitiate the
conviction if the same is recorded only on the basis of the
·· recoveiy of· the illicit article from the person· of the accused
. [Link]:ig :such search. Thereafter, tlie su$'pect may or may not
choose to exercise the right provided to him under the' said
provision· .. . We are of the opinion that the conoept of
"substantial compliance" with the requirement of Section 50 of
· · the NDPS. Act introduced and read into the mandate of the said
Section .in Joseph Fernandez (supra) and Prabha Shankar
Dubey (supra) is neither borne out from the language of Sub-

'
· ,a c2011) 1 sec aoe. ··
12
 I

i&E;JGtion (1) of Section SQ nor it is in con~onance with the <:Jictvm

·• laid down in Baldev Singh's case (supra)."

I
.The principl~ which em(;lr9es from Vijaysinh is that th~ c~;inc~pt <;,f "s~bstc;1ntial

. ·. c;::qmpliance" with fhe reqU,irement of Sec;tion 50 is neith~r in ay<;or<;Jance with

theJ;3w laid down in Baldev Sin9h, nor can it be Gonstrued from its lang1Ja9.~.

[Reference rric;3y aJso be made to the decision of a two judge [Link] of thi~ Court

· ·... in. Venk~teswa~lu]. Therefor~. strict complianGe with Secti<;m 50(.1) l;>y the

e~power~d o:fficerJs. mandatory. Section 50, however, applies 9nly in th~ ca~e.

qfa ~earch of a person. In Baldev Singh, the C9L,1rt held "9n its plain reading, ·

·. Section ;50 would come into play only in the case of a se~rch of c;1 person as
l . .. . .
disting1;1ished from search of any [Link], etc." In State 9f Himi;tchal Prad~sh

·.. :,v Pawan Kum·~r ("Pawan Kumar"), 11 a three judge Bench of this Courtheld
. . . ' :

that the search of an article which was being carried by a person in his hand, or

on his shoulder. or h~ad, etc., would not attract Section 50. It was held thus:

"In common parlance it would be said that a person is carrying

a particular article, specifying the manner in which it was
carried like hand, shoulder, back or head, etc. Therefore, it is
riot pos~ible to include thes.e articles within' the ambit of the
. word "person" occurring in Section 50 of the Act , .. After the
. decision in Baldev Singh, this Court has consistently held that.
s·ection ·so would only apply to search of a person and not to·
any bag; article or container, etc. being carried by him."

In Parman and, on a search of the person of the respondent, no substance was

· .· .• found. However, subsequently, opil,Jm was recovered from the bag of the

respondent. A two•[Link] Bench of this Court considered whether compliance

. . ' ..
· 11 (2005) 4 sec 350, ·

13
 '
with $ecticm 50(1) was reql,lired. This CoLJrt held that the empowere,d offic~r
' '

Vy9S require9 to c~mply with the requirements of $ection 50(1) as the per~~m of
the respondent was also searched. [Reference, may alsQ be made. t9 the

deci$ion of a two judge Bench of this Court in Oilip V $t9t~ of Madhya

Pradesh] 12 . It We;)$ held thus:

"[Link], if m~rely a bag carried by a person is s~arched withot,1t

th~re being sny search of his person, Section 50 of the NOPS
Act will have no application. But If the pag carried by him is
sec1rched and his person is also searched, Section 50 of the
NDPS A~t will have application,"

· M9r~ovE:}r; in the above case, the empowered officer at the time of cqnd,uc;ting ,

.· the ~earch informed. the respondent that he coulc;f be searched befQre th~ · ·· .

nearest ·Magistrate or before the nearest gazetted officer or before the

· · Superintendent, .who was also a part of the raiding party. The Court held that

· the search of the respondent was not in consonance with the requirement$ of

.· Section 50(1) as the empowered officer erred in giving the respondent an option

·ofbeing·search before the Superintendent, who was not an independent Qffic,er.

..·it was held thus: .

"We . also notice that PW 10 SI Qureshi informed the
respondents that they could be searched before the nearest
Magistrate or before the nearest gazetted officer or before PW
5 J.S. Negi, the Superintendent, who was a part of the raiding
party, It is the prosecution case that the respondents informed
the officers that they would like to be searched before PW 5
J.S. Negi by PW 10 SI Qureshi. This, in our opinion, is again a
bre~ch of Section 50(1) of the NDPS Act. The idea behind..
. taking ari. accused to the nearest Magistrate or the nearest
gazetted officer, if he so requires, is to give him a chance of
beirig searched in the presence of an independent officer.
Therefore; it was improper for PW 10 SI Qureshi to tell the

. · 12 i2001) 1 sec 450. i. · · ·

14
 respQnc;lents that a third alternative was availaQle and that they
could be .s~arched before PW 5 J.S. Negi, the Superintendent,
· who _v,/as part of the raioing party. PW 5 J.$. Negi canr:,ot be
· called 9 n independent offic::er. We are not expressing any
opinipn ·on the ql,le~tion whether if the respondents haq
voluntarily expressed that they wanted to be searc;:hec;l before
PW 5 J.$. Negi, the search would have been vitiated or not.
But PW 10 $1 Qureshi could not have given a third option to
the respondents when Section 50(1) of the NOPS Act does not
provide for it and when such option would fn,istrate the
provisions of Section 50(1) of the NOP$ Act. On this ground
also, in <;>ur opinion, the search conducted by PW 1O$1 Qureshi
is vitiated."

The:qUestion which arises before ~s is whether Section '50(1) ~a·s req!Jire<i, tc;>

· be complied with'when charas was recovered only from the bag of the appf;lllant

and no charas [Link] on his person. Further, if the first question is answer(;}d

· in the affirmative, whether the requirements of Section 50 were strictly complie9

, 11 · As evidenpeciby Exhibit-3, a first option was given to the· appellant.· PW-.

. ·. ·. · 2 informed him th~Ut was his legal right to be searched either in the presence 1

· · of a magistrate or in the presence of a gazetted officer. The appellant was then

._ asked to give his option by indicating whether he wanted to be searcheQ by ~

•..
· magistrate or a gazetted officer. The appellant indicatEtd that he wanted the
. . ., . .

,
search to be< carried out in. the presence of a gazetted officer. When PW-4.
• • • ' I '

. . . arrived,:he
' .-
was
.
ir:,troduced
..
to the detainee as a gazetted officer. As evidenced
.

. -by Exhibit-4, PW-4 then gave the appella~t a second option. He inquired of him

again, whether hewanted to be searched in the presence of a gazetted officer

. ·or in the. presence of a magistrate. The appellant reiterated his_ desire to be

15
·. I

I
 ·• . searc::hed:
- . - .
in the presence
·.. -. of a gazetted
'
officer. Sefore the search qt th~

~ppellant commenced, the, Q~z~tted officer asked the c1ppellant wnether he

wanted to search PW-2 before his own search was carried out by PW-2. The

·. . appellant agreed to 5ijarch PW-2 before the latter carried 9ut his [Link]. On

:'conducting the search, only personal belongings of PW-2 WEpre fo~nd by the·
.. . . . . •. . . . ' . J
·.· appellant On the set,3rch ofthe appellant in the presence of the gazettf;ld offi9er,

· a· Qi$CUit CQlour jute bc:lg was recovered from the appellant, and Rs. 2.400/- ca,sh
in. th~ deriominationof 24 notes of Rs. 100/- each was found in the, l~ft pocket

·.... of the appellant's-trouser. When the bag was opened, alblack polythen~ c<;>Ver_

c9ntainin~J nineteen rectangular broken sheets of a blackish / deep brown col()ur

· ·• >wei9._hing·1.5 kilograms was recovered. The sheets were tested anq were fo1,.1nd
.'to be charas.

·PW.:.2 conducted a ·search of the ~ag of the appellant as well as of the

·· appellant's trousers. Therefore, the search conducted by PW-2 was not only of
• - •. I

the bag which the appellant was carrying, but also of the appellant's person.

: Since· }he search_ of fhe person of the appellant was also. involved, SectiQn '50
would be attracted in this case. Accordingly, PW-2 was required to comply ·with

the requirements of Section 50(1 ). As soon as fhe search of a person takes

place, the requirement of mandatory compliance with Section 50 is attracted,

irrespective of wh~ther contraband is recovered from the person of the detainee

. •or not It was,1therefore, imperative for PW•2 to inform the appellantof his legal

· rightto be se,aJched in the presence of eithef a gazetted officer or a magistrate.

16
 . ·_ . \ '

·.. From
. . .. -can
Exhibit~.3;:it '
t,e discerned that the appellant was informed of his legal
; ' ' ' (

ri~ht to b~ sec;1r◊heo· in the presE1}nce of a magistr~te or a gazetteo offic~r. The

'appefl$nt opt~df9r the latter alternative. l;xhibit-4 is a recoro of the events's3fter
. ., '

the ~rrival of PW-4 on the scene. After the arrival of PW-4, the appellant was.
' • . • .' I

oricE? a~c;1in c;1sked by him, whether he wished to be searche(.i in the pres~nce of

a gazetted officetqr a magistrate. This was the second option which wqis

· presented to him. When he reiterated his desire to be ~earched t)efore a

•'..
.
• . .. ,,'
.
'
. t

. g$.z~ttfd
.. , •'
officer,
., ,·•
.PW,;.4 '
inquired of the appellant whether he wish~9 to search

·· .· pw. 2 before hi~ own search was conducted by PW,.2. The appellant agre·~a to
. ·. , ... ' .· .. · ·. . . - , .. . . ·_ '

· seq1ri;;h PW-2. Only the personal belongings of PW-2 were founq by. the

·appellant. It was ·only after this that a search of the appellant was c<;mdvcted

· and oharas recovered. Before the appellant's search was conducted, bQth PW-

2 and PW-4 on. different occasions apprised the appellant of his legal right to be

.searched .either in. th_e presence of a gazetted officer or a magi~trate: The

. ..options
.
.given . byb;th PW,-2 and PW-4 were unambigudus. Merely. because 'th$ . '

. appellant was giy(:3□ an option of searchi~g PW•2 before the latter conductec;t

··•.· .· higsearch, would hot vitiate the search. In Parmariand, in addition to the option
of being .searched by the gazetted officer or the magistrate, the detainee wa~
..· given a 'third' altemative by the empowered officer which was to be searched
. . ' ' .
·... -by an officer who. wa~ a part of the raiding team. This
. was found to be contrary

·.. ·, . to the· intent of Seqtion 50( 1). ·The option given to ttie appellant of searching . .

.· .· PW-2 in the case-at hand, before the latter searched the appellant, did not vitiate

the process in which a search of the ,appellant was conducted. The search of

17
 . . . ' ' . . : ' .

.· th~ ~ppell~nt w~s as a matter of fi;19t ccmdvcte~ in the pr~sence of PW-4, a

gc;3zetted c;,ffioer,:ih consonance with the volyntary commynication made by the

.~pp~llant to both PW~2 and PW.-4. There was strict complianc;;e with the

rfigvirem~nts of Seqtion 50( 1) as $tipulated (?y this Court in Vijaysinh. .

12 . As we have 'already held that Section 50 was attracted in the present .

case., wedo not need te> dec;i<;Je on the ~pplicability ofNamdi tq the fa~ts' of th~.
pr~$$nt o~se. we: have held that Section 50 was;complied with. HavinQ re~arQ

.. to the above position. we do not find any merit in ithe appeal.

·13 Th~ Criminal Appeal shall accordingly stand dismissed.

i

••••• ■ JI II • • • • •: . . . . . . . . . . . . . . . . . ~ •••••••••••••••••••••••••.• CJI

[DIPAKl MISRA]
i

.............. l....................... _......•.•.............•...J

[Dr Dhalnanjaya Y Chandrach'i-'d] ·

•••••••••••• ~ . . . . . . . . . . . . . . . . . . . . . . 11 . . . . . . . . . . . . . . . . . . . . . . . ~ ..... J
[INDIRA BANERJEE]

I
.. . ·. New Delhi; .
· .·.... September O&, 2Q1 a;

...
18
I