ANOOP CHITKARA, J..

1. The petitioner, incarcerating upon his arrest for possessing a commercial quantity of 1,65,000 CLOVIDOL-100 SR tablets, containing Tramadol, in violation of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), has come up before this Court under Section 439 of CrPC, seeking bail.

2. In paragraph 5 of the bail petition, the accused declares that he was never involved in similar type of crime.

3. On Oct 30, 2019, the Inspector of the above-mentioned police station, while patrolling in his jurisdiction, received specific information that Sukhwinder Singh, Ravi Singh, Jinder Singh, and Lakhwinder Singh were involved in selling vast quantities of intoxicants, and they would be traveling and would have contraband with them, which can be recovered if caught. The SHO found the information to be reasonably reliable and registered an FIR. After that, the police party stopped the vehicle and found two of the personsabove named persons, namely, Lakhwinder Singh and Sukhwinder Singh. The accused desired the search by a gazetted officer, and on this SP was called, and in her presence, the investigator searched the vehicle and recovered 1,65,000 CLOVIDOL100 SR tablets without any purchase bills, license, or permission. The FSL found the constituents of the tablet to be Tramadol.

4. Ld. Counsel for the petitioner contends that the pre-trial incarceration would cause an irreversible injustice to the petitioner and family.

5. While opposing the bail, the contention on behalf of the State is that the quantity of contraband involved in the case falls in the commercial category, and petitioner is not entitled to bail.

REASONING:

6. The substance involved in the present case is ‘Tramadol’. Entry no. 238 ZHof the table specifying small and commercial quantities specifies the quantity greater than 250 grams as commercial quantity and lesser than 5 grams as small.Thus, the quantity allegedly involved in this case is commercial. Given this, the rigours of S. 37 of the NDPS Act apply in the present case. The burden is on the petitioner to satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act.

7. In paragraphs 7 &8 of the petition, the petitioner states that he was the driver of the vehicle and the vehicle belongs to one Amrik Singh and it was taken on hire. However, the petitioner did not substantiate his pleadings by any material whatso ever.

8. The petition further states that the accused is not shown in the conscious possession of the contraband. However, the recovery is from a vehicle, and the burden is on the petitioner, who was driving it, to point out the place and time, where it was kept in the vehicle, and by whom it was kept. A perusal of the petition does not refer to any such explanation. Furthermore, this plea would gather force only when the accused establishes the fact after cross-examination, and in the facts and circumstances peculiar to this case, the argument does not satisfy the requirements of section 37 of the NDPS Act.

9. Ld. counsel for the petitioner submits that the investigator conducted search and seizure violating section 50 of the NDPS.

10. Whether the Investigator complied with the mandatory provisions of sections 42 and 50 of the NDPS Act is a question of fact to be adjudicated in the trial. However, before this court treats the compliances as illegal, the prosecution needs an opportunity to prove that they had complied with the mandatory provisions per law. Such stage would come only during the trial and certainly not at the bail stage, where it would be hit by the maxim Audi alteram partem. The exception to this would be applicable only when the non-compliance of the mandatory provisions of sections 42 and 50 of the NDPS Act is apparent on the face of the special report under section 57 of the NDPS Act and other documents of search and seizure, and in the opinion of the court, the lapse is non-rectifiable, after recording a finding that it is an incurable defect, the court might consider granting bail on such violations.

11. In State of H.P. v. Prithi Chand, (1996) 2 SCC 37, [LQ/SC/1995/1228] Hon’ble Supreme Court holds,

[3]. The question is whether the learned Sessions Judge was justified, at the stage of taking cognizance of the offence, in discharging the accused, even before the trial was conducted on merits, on the ground that the provisions of Section 50 of the Act had not been complied with. This Court in State of Punjab v. Balbir Singh [(1994)3 SCC 299] [LQ/SC/1992/721] : (AIR 1994 SCW 1802) has considered the provisions of the Act. Section 50 has been held to be mandatory. In paragraph 16, this Court has held that it is obligatory on the part of the empowered or the authorised officer to inform the suspect that, if so required, he would be produced before a Gazetted Officer or a Magistrate and search would be conducted in his presence. It was imperative on the part of the Officer to inform the person of the above right and if he failed to do the same, it amounted to violation of the requirement of Section 50 of the Act. It was held that when the person was searched he must have been aware of his right and that it could be done only if the authorised or empowered Officer informed him of the same. Accordingly, this Court by implication read the obligation on the part of authorised Officer to inform the person to be searched of his right to information that he could be searched in the presence of the Gazetted Officer or the Magistrate. In SaiyadMohd. Saiyaad Umar Saiyed v. State of Gujarat [1995(3) JT SC 489] a three-Judge Bench of this Court had reiterated the above view and held that having regard to the grave consequences that might entail the possession of illicit articles under the Act, viz., the shifting of the onus to the accused and the severe punishment to which he became liable, the Legislature had enacted safeguards contained in Section 50. Compliance of the safeguards in Section 50 is mandatory obliging the Officer concerned to inform the person to be searched of his right to demand that search could be conducted in the presence of a Gazetted Officer or a Magistrate. The possession of illicit article has to be satisfactorily established before the Court. The Officer who conducts search must state in his evidence that he had informed the accused of his right to demand, while he is searched, in the presence of a Gazetted Officer or a Magistrate and that the accused had not chosen to so demand. If no evidence to that effect is given, the Court must presume that the person searched was not informed of the protection the law gives him and must find that possession of illicit articles was not established. The presumption under Article 114, illustration (e) of the Evidence Act, that the official duty was properly performed, therefore, does not apply. It is the duty of the Court to carefully scrutinise the evidence and satisfy that the accused had been informed by the concerned Officer that he had a right to be searched before a Gazetted Officer or a Magistrate and that the person had not chosen to so demand.

[4]. It is to be seen whether the accused has been afforded such a right and whether the authorised Officer has violated the mandatory requirement, as a question of fact, has to be proved at the trial. In Pooran Mal v. Director of Inspection [(1974) 1 SCC 345] [LQ/SC/1973/403 ;] ">[(1974) 1 SCC 345] [LQ/SC/1973/403 ;] [LQ/SC/1973/403 ;] : (AIR 1974 SC 348 [LQ/SC/1973/403 ;] ">AIR 1974 SC 348 [LQ/SC/1973/403 ;] [LQ/SC/1973/403 ;] ) a Constitution Bench of this Court had held that power of search and seizure, is, in any system of jurisprudence, an overriding power of the State for the protection of social security and that power is necessarily regulated by law. A search by itself is not a restriction on the right to hold and enjoy property, though seizure is a temporary restriction to the right of possession and enjoyment of the property seized. However, the seizure will be only temporary and limited for the purpose of the investigation. The power of search and seizure is an accepted norm is our criminal law envisaged in Sections 96 to 103 and 165 of the Criminal Procedure Code, 1973 [for short, "the Code"]. The Evidence Act permits relevancy as the only test of admissibility of evidence. The evidence obtained under an illegal search and seizure does not exclude relevant evidence on that ground. It is wrong to invoke the spirit of Constitution to exclude such evidence. The decisions of the American Supreme Court spelling out certain Constitutional protections in regard to search and seizure are not applicable to exclude the evidence obtained on an illegal search. Courts in India refuse to exclude relevant evidence merely on the ground that it is obtained by illegal search and seizure. When the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search and seizure, is not liable to be shut out. Search and seizure are not a new weapon in the armoury of those whose duty it is to maintain social security in its broadest sense. If the safeguards are generally on the lines adopted by the Code, they would be regarded as adequate and render the restrictions imposed as reasonable measures.

[7]. It would thus be settled law that every deviation from the details of the procedure prescribed for search, does not necessarily lead to the conclusion that search by the police renders the recovery of the articles pursuant to the illegal search, irrelevant evidence nor the discovery of the fact inadmissible at the trial. Weight to be attached to such evidence depends on facts and circumstances in each case. The Court is required to scan the evidence with care and to act upon it when it is proved and the Court would hold that the evidence would be relied upon.

12. The stand that the accused is in custody for sufficient time is also not a legal ground to overcome the rigors of S. 37 of the NDPS Act at this stage.

13. The grounds taken in the bail petition do not shift the burden placed by the legislature on the accused under S. 37 of the NDPS Act. The petitioner has not stated anything to discharge the burden put by the stringent conditions placed in the statute by the legislature under section 37 of the NDPS Act. Thus, the petitioner has failed to make a case for bail at this stage.

14. In the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner fails to make a case for bail at this stage.

15. Any observation made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments.

16. Petition dismissed in aforesaid terms. All pending applications, if any, stand disposed.