Criminal Miscellaneous App. No.58 of 1998

21st April, 1998

Petitioner Counsel: Shri LALIT CHARI, Shri J. PETER D'SOUZA
Respondent Counsel: Shri S.B. FARIA

Cases Cited:
1989(2) GLT 1 [Para 2]
Criminal Appeal No.5/1997 [Para 2]
Criminal Appeal No.30/1997 [Para 2]
1995 Cri LJ 2074 [Para 2]
AIR 1996 SC 977 [Para 5]

JUDGMENT

JUDGMENT :- The Applicant stands charged for possession of 5 grams of charas punishable under Section 20(b)(ii) of the N.D.P.S. Act. The charge has already been framed against the accused and two prosecution witnesses have been examined. Two bail applications filed by the Applicant before the learned Special Judge have been dismissed. In order dated 6th of April, 1998 passed by the Special Judge under the N.D.P.S. Act, the learned Judge has come to the conclusion that it is a case of chance recovery due to which, prima facie, provisions of Section 50 of the N.D.P.S. Act are not attracted in the facts and circumstances of this case. This conclusion is seriously challenged by learned Sr.Advocate Shri Lalit Chari while arguing this Application for bail before me.

2. The contention of learned Sr.Advocate for the Applicant is that the panchanama of recovery itself shows that it is not a case of random search and seizure and even the Investigating Officer had not considered this to be a case of chance recovery and, on the contrary, an effort/attempt was made to comply with the provisions of Section 50 of the N.D.P.S. Act. Nevertheless, it is pointed out that the accused was not informed by the Search Officer that he was to be searched for drugs and in view of the Judgment of this Court in Shri Sureshkumar Khandelval v. State (1989(2) G.L.T.1), which is subsequently followed in Mr.Ilan Pierre Yan Wijnalda v. State (Criminal Appeal No.5/1997) and in Shri Hurata Chiharu v. State of Goa (Criminal Appeal No.30/1997), the search and seizure is illegal since the accused was never informed that he was to be searched for drugs and the trial is vitiated. In the light of these submissions, it was urged by the learned Sr.Counsel that it cannot be said that there are reasonable grounds to believe that the Applicant is guilty of an offence and, as such, bail should not be denied to the Applicant at this stage. Reliance was also placed on the Judgment of the Apex Court in Mohinder Kumar v. The State (1995 Cri.L.J. 2074).

3. On the other hand, learned Public Prosecutor Shri Faria urged before me that the facts of the case disclose that it is a case of chance recovery on account of which the question of compliance with the provisions of Section 50 of the N.D.P.S. Act did not arise; that two witnesses have already been examined and the prosecution has to examine two or three more witnesses and the trial of the case is likely to be completed by middle of next month and that in case the Applicant, who is a foreigner, is enlarged on bail, he will not be available for trial.

4. The case of the prosecution is that lady Police Sub-Inspector Suchita Dessai was performing frisking duty at the ladies frisking booth at the international terminal for flights IC-164 and CD-468. While frisking the Applicant and on checking her handbag, lady Police Sub-Inspector Suchita Dessai noticed a small plastic transparent packet suspected to be containing a black solid substance as drug. On enquiries made with the Applicant by the said lady Police Sub-Inspector, the Applicant stated that it was hashish. This statement of lady P.S.I. Suchita Dessai would thus, prima facie, make out a case of chance recovery. While checking the said bag the said lady P.S.I. had already found a small plastic transparent packet which was suspected to contain drug. This recovery once having been made, could not be discovered again and even though the Police Authorities tried to comply with Section 50 of the N.D.P.S. Act, the law does not require such compliance in case of chance recovery. What is important is not how the Police Authorities treat the recovery, but how the recovery is to be treated in law. Action replay by the police is of no consequence. I am, prima facie, in agreement with the learned Special Judge that it is a case of chance recovery and the rigour of Section 50 of the N.D.P.S. Act would not be, prima facie, attracted. The ruling of the Apex Court in Mohinder Kumar V. The State (supra) upon which reliance has been place is not attracted in the facts and circumstances of this case. In the said case, the Police party had accidentally reached the house of the accused while on patrolling duty and due to the conduct of the accused persons in trying to run into the house, the Police party had entertained reason to believe that the accused persons were in custody of narcotic drugs. It was in these circumstances that the Apex Court had laid down that from the stage the Police party had reason to believe that the accused persons were in custody of narcotic drugs, the provisions of Section 50 of the Act were required to be adhered to. The position of the case under consideration is totally different. The lady P.S.I. have already found the suspected drug in the said bag of the Applicant. Therefore, in the circumstances, it was not necessary that the Applicant should have been told that he was to be searched for drugs or that he could be taken for search to the nearest Gazetted Officer or Magistrate, since the suspected drug which is stated to be charas, had already been found in the said bag of the Applicant. I am, therefore, prima facie, in agreement with the Special Judge that the provisions of Section 50 would not be attracted in this case.

5. Moreover, it has been laid down by the Apex Court in State of Himachal Pradesh v. Shri Pirthi Chand and another (AIR 1996 SC 977) as under :-

"The evidence collected in a search in violation of law does not become inadmissible in evidence under the Evidence Act. The consequence would be that evidence discovered would be to prove unlawful possession of the contraband under Act. It is founded in Panchanama to seize the contraband from the possession of the suspect/accused. Though the search may be illegal but the evidence collected, i.e. Panchanama etc. nonetheless would be admissible at the trial. At the stage of filing charge-sheet it cannot be said that there is no evidence and the Magistrate or the Sessions Judge would be committing illegality to discharge the accused on the ground that Section 50 or other provisions have not been complied with. At the trial an opportunity would be available to the prosecution to prove that the search was conducted in accordance with law. Even if search is found to be in violation of law, what weight should be given to the evidence collected is yet another question to be gone into. Under these circumstances, the discharging of accused after filing of the charge-sheet on ground that mandatory requirements of Section 50 had not been complied with, was not proper."

Besides this, the prosecution has already examined two witnesses and according to the Public Prosecutor, the trial is likely to be over by middle of May, 1998. It is also to be borne in mind that it has been the experience in this State of Goa that more than 90% of the foreigners who are granted bail have jumped bail and they are not available for trial as a result of which large number of prosecutions under the N.D.P.S. Act have been frustrated and the culprits could not be brought to book.

6. Taking an overall view of the matter, this is not a fit case in my opinion where the Applicant can be ordered to be enlarged on bail. I, therefore, do not find any merit in this bail application and the same is rejected. The rulings upon which reliance has been placed by the learned Sr.Advocate for the Applicant do not, prima facie, help the case of the Applicant in facts and circumstances of this case.

7. Before concluding, I would like to make it clear that any observations made in this Order shall not in any manner influence the Special Judge while dealing with the case on merits and the Special Judge would be free to draw his own conclusions. In fact, I would have refrained from dwelling on some of the aspects referred to in the Order but for the submissions made on the strength of which the bail order was strenuously pressed for, which thus necessarily required to be dealt with in the Order.

8. The Application stands rejected with the aforesaid observations.

Application rejected.