TMI Blog1996 (2) TMI 596X X X X Extracts X X X X X X X X Extracts X X X X ..... an application for bail which was rejected by the learned Special Judge. Hence he has approached this Court for bail under Section 439 Cr.P.C. 3. The prosecution case is that on the midnight of 2nd/3rd October, 1994, the petitioner who was going to board Singapore Airlines flight, on suspicion, was stopped by officers of Air Intelligence Unit of Customs at Sahar Airport. The petitioner was found in possession of a briefcase. The petitioner was brought to the office of the Customs Officer on suspicion. He was questioned whether he was in possession of any foreign currency or any narcotic drugs. The petitioner replied in the negative. Then on suspicion, the concerned officer searched the briefcase which was found to contain 2,400 gms. of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zetted officer. It was argued that in this case no such offer was made to the accused and hence there is non-compliance of Section 50 of the N.D.P.S. Act and that is a ground for bail. Reliance was placed on a decision of the Supreme Court in the case of Mohinder Kumar v. State of Goa, reported in 1995CriLJ2074 . No doubt, in that case there is an observation that there was a breach of Section 50 of the N.D.P.S. Act, but the Apex Court has made it clear even in that case that in the case of a chance recovery, the procedure under the N.D.P.S. Act must be followed from the stage when a narcotic drug was found. The Apex Court has also relied on it earlier decision in State of Punjab v. Balbir Singh reported in 1994CriLJ3702 to which I will pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c drugs on suspicion, Section 50 of the N.D.P.S. Act is not attracted at all as pointed out by the Apex Court in Balbir Singh's Case 1994CriLJ3702 (supra). After discussing the points of law involved, the conclusions are summarised in para 26 at page 1887 (of AIR) of the reported judgment. In para 26(1) it is clearly observed that in the case of a chance recovery, the search is complete and at that stage Section 50 of the N.D.P.S. Act is not attracted and hence compliance with requirements of that Section does not arise. In the present case, if, even after finding the narcotic drug in the briefcase, the police officer had searched the person of the accused and recovered some more narcotic drugs, then there would have been violation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was argued that the petitioner was taken into custody in the early morning hours on 3rd October 1994, but he was produced before the Magistrate only in the afternoon of 4th October, 1994 which is beyond the statutory period of 24 hours. On the other hand, the learned Counsel for the first respondent contended that the accused was formally arrested on the morning of 4th October, 1994 and on the same day in the afternoon he was produced before the learned Magistrate which is well within 24 hours from the time of arrest. Section 57 Cr.P.C. provides that a person shall not be detained in custody beyond 24 hours who has been arrested without arrest warrant. Even Article 22 of the Constitution of India provides that every person arrested and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent with this later decision of this Court. In this context, we may make a reference to a decision of the Apex Court reported in 1994CriLJ2269 Directorate of Enforcement v. Deepak Mahajan, where the Apex Court had occasion to consider as to what is meant by the word arrest . It was pointed out in para 48 of the reported judgment that in a legal sense in connection with criminal offences, an arrest consists in the taking into custody of another person. In para 50, it is mentioned that the word arrest includes custody , but custody may not always amount to arrest . Both the words arrest and custody cannot be used as synonymous terms. In my view, the accused was questioned on the early morning hours on 3rd October, 1994 to f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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