Criminal Misc. Appln. No. 73 of 1996. Case: Badlu Maurya Vs State of Goa. High Court of Bombay (India)
| Case Number | Criminal Misc. Appln. No. 73 of 1996 |
| Counsel | For Appellant: J. P. D'Souza, Adv. and For State: G. U. Bhobe, Public Prosecutor |
| Judges | R. K. Batta, J. |
| Issue | Narcotic Drugs and Psychotropic Substances Act (61 of 1985) - Sections 37, 42(1) |
| Citation | 1997 CriLJ 1250 |
| Judgement Date | July 15, 1996 |
| Court | High Court of Bombay (India) |
Order:
(Goa Bench)
-
The Applicant stands charged for possession of 5 kgs. of charas under S. 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the said Act). The charge has already been framed against the applicant.
-
The applicant sought bail on two grounds namely: (i) The Investigating Officer had conducted the search in the house of the applicant after sunset and in accordance with proviso to S. 42(1) of the said Act he was required to record grounds of his beliefs in terms of the said proviso. This was not done by the Investigating Officer; and (ii) The Investigating Officer did not forward the grounds of beliefs which are to be recorded under the proviso to the superior officer in terms of S. 41 (2) of the said Act. After detailed discussion of the facts and circumstances of the case, Special Judge, N.D.P.S. Court, Mapusa rejected the bail application. The applicant seeks bail on the same grounds in this application.
-
Learned Advocate Shri J. D'Souza relied upon a judgment of the Apex Court in State of Punjab v. Balbir Singh (1994) 2 JT (SC) 108: (1994 Cri LJ 3702); Mazzanti Esposio Gian Carlo, Italian National, holder of Passport No. 433798 at present lodged in Central Jail, Aguada, Goa v. State of Goa 1995 (1) Goa LT 5; unreported judgment of single Judge of this Court in Steven David Foigolson v. State of Goa (Criminal Misc. Application No. 144/1994) and another judgment of a single Judge of this Court in Lawarance D'Souza v. State of Maharashtra, 1992 Cri LJ 399. On the basis of the grounds urged and the rulings quoted by him, Shri D'Souza seeks release of the applicant on bail.
-
Learned Public Prosecutor Shri Bhobe submitted before me that the information relating to possession of charas by the applicant was given by one Dipak alias Vaikunt Vinayak Gaonkar from whose possession 7 kgs. of charas was recovered; the statement of the said Deepak was recovered by the I.O. who wrote a letter at 8.40 p.m. to Dy. S. P. ANC informing the said facts and that he was proceeding for raid to the house of the applicant at Bicholim. Shri Bhobe has further pointed out that even before the Investigating Officer proceeded to Bicholim, he had informed the panchas that he could not obtain a search warrant or authorisation as required by law as he had no time to do so and there was a possibility of escape of the applicant or to conceal the drug at a safe place. He, therefore, contends that the Investigating Officer had informed the panchas of the grounds of beliefs before proceeding for the search and the contemporary record in the nature of complaint which was lodged at 1.05 hrs. also confirms the said facts and in the facts and circumstances of the case, there has been sufficient compliance of the law and that non-recording of the same in separate record is merely an irregularity. According to him, cases of this Court upon which reliance has been placed are distinguishable on facts and in the said cases no record at all had been maintained by the Investigating Officer.
-
The Apex Court in State of Punjab v. Balbir Singh (1994 Cri LJ 3702) (supra) had laid down that under proviso to S. 42(1) the Investigating Officer is required to record reasons of his belief while carrying out search...
To continue reading
Request your trial