TMI Blog1987 (12) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... e white powder was also noticed inside the toilet pot in the flowing water. The powder was suspected to be heroin. About one kilogram powder was seized. Five gram sample was taken under a panchnama and accused were arrested and brought to the police station. A case under C.R. No. 39/87 for charges under section 8(c) read with 22 and 29 of N.D.P.S. Act 1985 was registered. 2. On 27th of October, 1987 all the three accused were produced before the learned Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Bombay. An application for remand to police custody was made to facilitate further investigation in the case. The application mentioned that the police have strong objection for bail of the above accused persons. 3. It appears that at the very same time the accused persons applied for bail to the learned Magistrate. It was submitted on behalf of the accused that the arrest of all the accused persons was illegal inasmuch as the ground of their arrest were not at all communicated to them. Reliance was placed on the judgments reported in 1975 Criminal Law Journal, page 1254, and 1976 Criminal Law Journal, page 1303. The Police Sub Inspector Mr. Birje who presented t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the order of stay should be vacated forthwith. The said application was presented before the learned Magistrate at about 4.15 p.m. on 27th of October, 1987. The learned Magistrate heard the Advocate for the accused and observed that he had no power to vacate the orders passed by him and when the order itself was challenged he had no option than to grant the stay. The learned Magistrate was therefore pleased to reject the application of the accused for vacating the stay. 6. The accused have filed the present Criminal Application No. 2291 of 1987 against the said order of granting stay of order of bail. 7. The State on its part has filed Criminal Application No. 2316 of 1987 challenging the order of granting bail to the accused by the learned Magistrate. 8. As far as the challenge by the accused to the order of the learned Magistrate staying his earlier order is concerned. Shri Merchant, the learned Advocate for the petitioners, submitted that the learned Magistrate had no jurisdiction to stay his own order and there is no provision under the Code of Criminal Procedure under which the learned Magistrate could pass such order. Shri Merchant relied upon the case reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of grant of bail, and the order of the learned Magistrate releasing the accused on bail has been stayed by this Court. 10. This bring me to the consideration of the application filed by the State being Criminal Application No. 23316 of 1987 challenging the order of the learned Magistrate granting bail to the accused. Smt. Belose contended that the order of the learned Magistrate granting bail to all the accused is absolutely illegal and improper. She contended that the reason and the only reason given by the learned Magistrate is that the grounds or reasons of arrest were not communicated to the accused. Smt. Belose contended that the reasons were communicated orally by the Police Officer concerned. Secondly all the accused persons were nabbed almost red-handed. It was found that they were destroying the white powder by flushing it through the toilet and under these circumstances it cannot be said that the accused were not knowing as to why they were arrested. Smt. Belose contended that on proper reading of section 50 of the Code of Criminal Procedure it cannot be inferred that the accused must be informed in writing. Smt. Belose further contended that not even a period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o in this behalf relied upon the cases reported in (1) 1975 Criminal Law Journal, page 1249, (2) 1976 Criminal Law Journal, page 1303 and (3) 1987 Criminal Law Journal, page 1750. Shri Merchant therefore, contended that the learned Magistrate was fully justified in releasing the accused persons of bail. 12. So far as the merits of the case are concerned , there can be hardly any doubt that the order of the learned Magistrate is absolutely improper and unjust. In fact the learned Magistrate himself in conscious that the alleged offence is under N.D.P.S. Act, one kilogram of white powder valued at ₹ 1 lac has been allegedly seized from the accused by the police and these allegation are very serious. In the facts and circumstances of the case it is abundantly clear that the accused could not have been released on bail within 24 hours when no further investigation could be caused at all. In view of the facts and circumstances of the case, the petitioners could not have been released on bail within 24 hours of their arrest. However, the order of grant of bail challenged before me is passed by the learned Magistrate solely on the ground that there is non-compliance of the mandat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate within a period of 24 hours and his further detention in custody, whether police or judicial, beyond 24 hours has to be under the authorisation of the learned Magistrate which authorisation cannot be for more than 14 days at a time. Secondly depending upon the nature of the offence and the punishment prescribed therefore, such authorisation cannot go beyond 60 days or 90 days and thereafter whatever may be the offence if the accused offers bail and charge-sheet is not filled, the Code provides that such persons shall be released on bail. Provisions of section 50 of the Code of Criminal Procedure will have to be appreciated, understood and interpreted in the light of all these provisions. In the light of these provisions. I do not think that the communication referred to in section 50 of the Code of Criminal Procedure must be every case in writing. What is important is communication or knowledge or information regarding the particulars of the offence for which the arrest is made or other grounds for such arrest. Provisions of section 50 of the Code of Criminal procedure provide that the Police Officer shall forthwith communicate to him full particulars of the offence fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 50 of the Code of Criminal Procedure renders the arrest of the person concerned illegal. At best the further detention without complying with the provisions of section 50 may become illegal. However, in view of the fact that I am holding that in the facts of the case before me, provision of section 50 of the Code of Criminal Procedure are fully complied with, it is not necessary for me to decide this issue as to the effect or the non-compliance of the provisions thereof. 15. In view of this, the order of the learned Additional Chief Metropolitan Magistrate, 37th Court, Esplande, Bombay, is improper and illegal and the same is hereby quashed and set aside. 16. Shri Merchant, the learned Counsel appearing for the accused, contended that long period has gone since the accused persons had been taken into custody and there is no progress in investigation worth the name. He also complained of assault by the Police Officers on the accused. As far as these aspects are concerned, the record shows that the accused had made an application against the officers to the learned Magistrate and he will deal with the said application in accordance with law. As far as Mr. Merchant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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