Case Note & Summary
The applicant, Fakir Ahmed Mohd. Shaikh, was arrested and allegedly found in possession of 1.100 kg of charas, a commercial quantity under the NDPS Act. He filed a second bail application before the Bombay High Court. In his first bail application, he had contended that the charge-sheet was not filed within 60 days and that the C.A. report lacked data, but those objections were rejected. In the second application, he raised two grounds: (1) that the investigation was incomplete because the C.A. data was not supplied, and therefore the charge-sheet filed after 142 days was not valid, entitling him to bail under Section 167(2) Cr.P.C.; and (2) that the mandatory provisions of Section 50 of the NDPS Act were not complied with, as the accused was merely informed of his right to be searched before a Magistrate or Gazetted Officer but was not actually produced before such officer. The court rejected both contentions. On the first ground, the court held that the charge-sheet was filed within 180 days (the applicable period for commercial quantity) and that the investigation was complete upon filing the charge-sheet; non-supply of C.A. data does not render the investigation incomplete. On the second ground, the court distinguished the Supreme Court judgment in Narcotics Central Bureau v. Sukh Dev Raj Sodhi, noting that in that case the accused had opted to be searched before a Gazetted Officer but was not taken to one. Here, the accused stated he did not require such a search, so there was no duty to produce him. The court held that Section 50 does not require production when the accused declines the offer. Accordingly, the bail application was dismissed.
Headnote
A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Search and Seizure - Compliance - Where accused is informed of his right to be searched before Magistrate or Gazetted Officer and he declines, it is not necessary to produce him before such officer - Mere informing and obtaining refusal is sufficient compliance (Paras 4-5).
B) Code of Criminal Procedure, 1973 - Section 167(2) - Default Bail - Incomplete Investigation - Charge-sheet filed within 180 days for commercial quantity is valid even if C.A. data not supplied - Investigation deemed complete upon filing charge-sheet (Para 3).
Issue of Consideration
Whether the accused is entitled to bail under Section 167(2) Cr.P.C. on ground of incomplete investigation due to non-supply of C.A. data, and whether non-compliance of Section 50 NDPS Act entitles bail.
Final Decision
Bail application dismissed. Court held that charge-sheet was filed within 180 days and investigation was complete; Section 50 compliance was sufficient as accused declined the offer to be searched before Magistrate or Gazetted Officer.
Law Points
- Section 167(2) Cr.P.C. bail not available if charge-sheet filed within 180 days for commercial quantity
- Section 50 NDPS Act compliance not mandatory if accused declines offer to be searched before Magistrate or Gazetted Officer
Case Details
2011 LawText (BOM) (08) 79
Criminal Application No.362 of 2011 in Criminal Application No.82 of 2011 in N.D.P.S. Special Case No.29 of 2011 in N.D.P.S. Special R.A.No.132 of 2010 in N.D.P.S. Special C.R.No.01 of 2010
Mr. U.V. Arolkar for the Applicant, Mr. P.A. Pol, Public Prosecutor alongwith Mr. J.P. Yagnik, APP for the Respondent/State
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Nature of Litigation
Criminal bail application under NDPS Act
Remedy Sought
Bail by accused on grounds of incomplete investigation and non-compliance of Section 50 NDPS Act
Filing Reason
Accused allegedly found in possession of 1.100 kg charas, commercial quantity; second bail application after first was rejected
Previous Decisions
First bail application rejected holding that charge-sheet could be filed within 180 days for commercial quantity and mere non-supply of C.A. data does not affect quantity
Issues
Whether the charge-sheet filed after 142 days but within 180 days is valid for commercial quantity under NDPS Act, entitling accused to default bail under Section 167(2) Cr.P.C. due to alleged incomplete investigation?
Whether non-compliance of Section 50 NDPS Act (failure to produce accused before Magistrate or Gazetted Officer after informing him of right) entitles accused to bail?
Submissions/Arguments
Applicant argued that investigation was incomplete as C.A. data was not supplied, so charge-sheet not validly filed within 180 days, entitling bail under Section 167(2) Cr.P.C.
Applicant argued that Section 50 NDPS Act was not complied with because accused was not produced before Magistrate or Gazetted Officer after being informed of his right, relying on Narcotics Central Bureau v. Sukh Dev Raj Sodhi.
Ratio Decidendi
For commercial quantity under NDPS Act, charge-sheet must be filed within 180 days; filing charge-sheet within that period completes investigation even if C.A. data not supplied. Under Section 50 NDPS Act, if accused is informed of his right to be searched before Magistrate or Gazetted Officer and he declines, there is no further duty to produce him before such officer.
Judgment Excerpts
Merely because data of the analysis was not provided alongwith C.A. Report, it can not be said that investigation was not complete and, therefore, it can not be said that charge-sheet was not duly filed within 180 days from the date of arrest.
If the accused opts to be searched either in presence of the Magistrate or Gazetted Officer, then it becomes duty of the police to take his search in presence of such Magistrate or Gazetted Officer... But in the present case, the accused stated that he did not require to be searched in presence of Magistrate or Gazetted Officer.
Procedural History
Accused arrested for possession of 1.100 kg charas; first bail application rejected; second bail application filed on grounds of incomplete investigation and non-compliance of Section 50 NDPS Act; heard and dismissed by Bombay High Court on 12 August 2011.
Acts & Sections
- Narcotic Drugs and Psychotropic Substances Act, 1985: Section 50
- Code of Criminal Procedure, 1973: Section 167(2)
