J.K. MATHUR, J.
Almost total obfuscation of principles which govern the grant of bail caused by differing subjective responses by different Branches without disclosing any reason, have made it difficult to identify the
thread of rationality in the grant or' bail and that has led to this reference to a larger Bench by a learned Single Judge, seeking answers to the following questions :
" (1) Whether it is incumbent on the arresting officer to disclose to the accused, while affecting arrest under Section 50 of Narcotic Drugs and Psychotropic Substances Act of a person suspected to be in possession of narcotic or psychotropic substances, that he is entiled to be produced before a Gazetted Officer or a Magistrate for search ? If so, whether such arrested person is entitled to bail under Section 37 of the said Act ?
(2) Under what circumstances bail under Section 37 of the Narcotic Drugs and Psychotropic Substances Act can be granted to a person accused of an offence under Section 18 of the said Act if the provisions of Article 22 (1) of the Constitution of India. Sec tion 50 (1) of the Code of Criminal Procedure, Sections 42, 52 and 57 of Narcotic Drugs and Psychotropic Substances Act are not complied with ?"
We have heard Shri S. S. Chauhan, Kunwar Mridul Rakesh and Sri Arun Sinha on behalf of the petitioners, Sri Bireshwar Nath, Government Advocate representing the State and Sri Waseem who appeared on behalf of the Union of India at length.
To effectively answer the first question with clarity, it is necessary to find:
(i) whether an officer acting under Section 50 of the Narcotic Drugs and Psychotropic Substances Act is bound to inform a suspect that he is entitled to be produced before a Gazetted Officer or a Magis trate for being searched;
(ii) if so, what is the effect of not so informing ;
(iii) whether not informing the suspect would be a sufficient reason for grant of bail; and
(iv) what is the effect of provisions of Section 37 of Narcotic Drugs and Psychotropic Substances Act on the question of grant of bail in such a case ?
2. On behalf of the petitioners it was urged that any officer proposing to conduct a search of any person for suspected possession of narcotic drugs or psychotropic substances has to inform the person that he has a right to select the officer before whom he may be searched, under Section 50 of the Narcotic Drugs and Psychotropic Substances Act (herinafter to be referred to as the NDPS Act).
3. The learned Government Advocate, on the other hand, contended that there was no such duty to inform implicit in Section 50. This needs inter pretation of Section 50 of the NDPS Act which runs as follows ;
"50. Conditions under which search of persons shall be conducted.- (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(. 4) No female shall be searched by anyone excepting a female. "
4. According to this provision whenever a person is to be searched under the provisions of Section 41, 42 or 43, if such person so requires, he has to be taken to the nearest Gazetted Officer of the departments mentioned in Section 42 or to the nearest Magistrate.
5. Such Gazetted Officer or Magistrate can, if he sees no reasonable ground for search, discharge, the person. He shall otherwise conduct the search in his presence.
6. This provision is a departure from the normal provisions of law where certain officers are authorised to conduct searches and whenever they have reason to suspect commission of a crime, they themselves can carry out search in accordance with law.
7. It has been urged on behalf of the petitioners that in this right pro vided bv Section 50, to be searched before a Gazetted Officer or a Magistrate inheres the right to be informed by the searching officer that the person to be searched has a right to select the officer who would search him.
8. However, on behalf of the State it was urged that the right to be searched before a Magistrate a Gazetted Officer has been rendered contin gent upon the person requiring that he be searched in their presence. If no such requirement is indicated, the officer concerned can proceed to search. It has also been urged that such an officer who seeks to search has no obligation under this provision to inform the person concerned that he has right to be searched before the Magistrate or a Gazetted Officer.
9. This right has been provided in the statute to the person to be searched only because the offences under this law are very serious and defence was frequently taken in cases that the searches and recoveries were not genuine. This procedure was provided as a safeguard against such searches. The law gives an option to a person to be searched before a responsible officer if he apprehends that search conducted by the designated officer may not be fair.
10. If a person is taken before a Gazetted Officer or a Magistrate, such officer or Magistrate has to take a decision about the search of the person and he can discharge the person in case he finds that there is no reason to re-search him. Thus, this provision not only permits choice of officer who may search, but also provides a right not to be searched and be discharged it he can persuade the officer of there being no reason to search.
11. Both these rights are dependent upon the person concerned exer cising his right to select the officer before whom he is to be searched.
12. Mo person can effectively exercise this right unless he knows that he has this right available to him. This provision, though barely states that a person to be searched has a right to select the officer before whom he is to be searched, yet this right in actual exercise has to include the right of being informed about this right and his being offered an opportunity to exerce this right. Without knowing that he has such a right, it cannot be exercised at ail and the provision would be rendered nugatory.
13. In this country where more than half of the population is illiterate and where almost the entiie population is unwere of the legal rights conferred by special laws, this right would remain only inert set of words kept unused within the covers of a book, unless the officer concerned does inform the person to be searched, if the officer concerned proceeds to conduct the search without informing or providing an opportunity to opt in intentional defiance of the provisions, he would still be able to justify his act and trustrate this provision by saying that the person did not require him to be produced before a Magistrate, unless right to be informed is read in it. No law can be interpreted in a manner that the person who operates the law is able to frustrate it with impunity.
14. Heydon's rule is an accepted tool of interpretation. It cannot be better stated than the manner in which it was enunciated initially in Heydon's case (3 Co. Rep. 7 a), as reproduced by Maxwell on the Interpreta tion of Statutes (12th Edition) at page 40 :
"that for the sure and true interpretation for all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered : (1st) What was the common law before the making of the Act ? (2nd) What was the mischief and defect for which the common law did not provide ? (3rd) What remedy the Parliament hath resolved and appointed to cure the disease of the common wealth ? And, (4th). True reason of the remedy and then the office of all the Judges is always to make such construction as shall suppress the mischief and advance the remedy and to suppress subtle inventions and evasions for continuance of the mischief and pro private commoo and to add force and life to the cure and remedys, according to the true intent of the makers of the Act, pro bonapublico. "
This rule has also been accepted and followed in this country. It was re-stated by the Supreme Court in Babaji Kandqji Garad v. Nasik Merchants Co-op. Bank Lid,, 1984 (2) SCO 50 ;
. . . . . . . . . . one can bring in Heydon's test more often noticed by this Court that in order to arrive at true intendment of a statute, the Court should pose to itself the questions ; (1) what was the situation prior to the provision under construction, (2) what mischief or defect was noticed before introducing the provision, (3) whether it was remedial and (4) the reason for the remedy. "
15. The NDPS Act replaced the Opium Act, 1978 and the Dangrous Drugs Act, 1930. Under Section 15 (b), the Opium Act, 1878 provided for the search of persons. A similar provision was contained in Section
24 (b) of the Dangerous Drugs Act. These provisions merely authorised the officers of specified departments to detain and search any person if they had reason to believe that he had committed any offence under the&e laws and had a substance in the possession which was punishable under these laws. No detailed provision was given and in the conduct or searches the provision of Criminal Procedure Code were applicable by virtue of the provisions of Section 4 (2), Cr. P. C.
16. As given above, it was felt that the searches conducted by these officers had their genuineness often disputed and in a number of cases persons were acquitted because the searches were found not to be genuine. It was to rectify this mischief that in the law, when re-enacted as NDPS Act provisions were changed to provide that search be conducted in pretence of a responsible Gazetted Officer or a Magistrate so that such search is more credible. This provision was made also keeping in mind that punish ments under the new Act were being raised substantially. The mischief sought to be remedied was search of dubious credibility by a set of officers.
17. The purpose of this provision was, therefore, to provide a safeguard to the persons who are searched for suspected possession of narcotics so that the searches are more credible being carried out in presence of the responsible officers.
18. This object of providing credibility to the searches was sought to be achieved by giving a right to the person to be searched to indicate if he wanted to be searched in presence of a responsible officer.
19. This object can be achieved only if the person to be searched knows that he has such a right. Unless he knows this, he cannot possibly express his desire to be searched before a Magistrate or a Gazetted Officer. It is, therefore, essential to read this requisite and the requirement of asking for the option as necessary part of the right to indicate whether a person would like to be searched in presence of a Magistrate or a Gazetted Officer. If this provision is not so read, it will defeat the object and intention of the legislature. The very object of including the requirement to be searched before a responsible officer will be frustrated and the mischief will continue :
20. The literal construction which is sought to be put on the words as they occur in Section 50 would be frustrative of the object of law. The basic rule of interpretation now is not to narrow down the rule of literal interpretation but the purposive rule, to look for the purpose of legislation and to interpret the statute in such a manner that it is able to yield the purpose for which the provision was legislated.
"during the last several years, the 'golden rule' has been given a go-by. We now look for the 'intention* of the legislature or the 'purpose' of the statute. First, we examine the words of the statute. If the words and precise and over the situation in hand, we do not go further. We expound those words in the natural and ordinary sense of the words. But, if the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it as our paramount duty to put upon the language of the legisla ture of rational meaning".
It was so said by the Supreme Court in tehar Singh v. State. 1988 (3) SCC 609 at 717.
In a number of other cases also the Supreme Court has held that statute could be interpreted in context of the object. These are :
(i) Chern Taong Shang v. S. D. Baijal, 1988 (1) SCC 507 ;
(ii) Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 (2)
SCC 654 ; and (iii) Charan Lal Sahu v. Union of India, 1990 (1) SCC 613.
21. The learned Government Advocate placed reliance on Wilfred Joseph Daood Lema v. State of Maharashtra, 1990 (2) EFR 547 and Ashok Kumar Singh v. State, 1994 (1) EFR 212 (Alld) (DB). In these cases it was held that the appellant could have been searched in the presence of Magistrate or Gazetted Officer only if he had so requested the police and that there was nothing in Section 50 to suggest that police officer taking search is duty bound to inform him that if he so desired, he shall be searched in the presence of a Gazetted Officer or a Magistrate.
22. In this case 1990 (2) EFR 547, the provision has been interpreted literally without considering its effect and object. The learned Judges did not consider that by so construing they were rendering it a sell-defeating provision.
23. The other case relied upon by the learned Government Advocate is a Full Bench decision of Orissa High Court in Banka Das v. Slate of Orissu, 1993 (2) EFR 487 (Ori.) (FB): 1993 JIG 830 (On) (FB). It has been
held that Section 50 of the Act does not act any obligation on the concerned official to inform the person to be searched that he has the option of making a requisition to be taken before a Gazetted Officer or a Magistrate. The reason for such a conclusion is that in certain cases wherein bound to inform, the law specifically provides for it. The decision of the Supreme Court in the case of Sukdas v. Union Territory of Arunachal Pradesh, AIR 1966 SC 991, has been distinguished only on the ground that in that case the Supreme Court had in mind the right of persons living below poverty line and acute illiteracy while they cannot be equated with 'death merchants |dealing with narcotic drugs and psychotropic substances. "
24. In the case of Sukdas (supra), availability of free legal aid was found to be inherent in the right to a fair procedure, a component of the right guaranteed under Article 21 of the Constitution. It was found that the accused being illiterate and ignorant people, did not know about its availability and, therefore, it was the duty of Courts to inform them about its availability and to provide it to th
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m. 25. In reaching the aforesaid conclusion in Bankadas (supra), it has been taken for grant that the person who is to be searched is guilty of the offence under the NDPS Act. The provision has been made primarily to protect persons who actually are not guilty but may be unlawfully trapped and falsely shown to be having in their possession narcotic substances. It is for the protection of the innocent citizens that this provision has been made. If a person actually having drugs in his possession is not taken to a Magistrate, it will not make any material difference for him. In fact he may not even ask for being so taken as it would create better and more credible evidence of recovery. It is only persons who do not possess the drugs that would like to be searched before a responsible officer. The basic assumption to distinguish the case of Sukdas (supra) in this case is, therefore, fallacious. 26. The view that the provisions of Section 50 also necessarily imply a right to be informed is also supported by the view taken by the Supreme Court in case of Hussainara Khatoon v. Home Secretary, 1980 (1) SCC 108. 27. Under Section 167 (2) of the Cr PC if a charge-sheet is not filed by the Investigating Officer within the stipulated time, the accused is entitled to be released on bail provided he furnishes security to the satisfaction of the Magistrate. It is, therefore, open to the Magistrate to release or further detain the accused without informing him or asking him whether he is or is not willing to furnish security and if the view canvassed by the learned Govern ment Advocate is taken, such an order would be lawful. Ths Supreme Court has, however, held that it is the duty of the Magistrate to inform the accused that he is entitled to be released on bail in case he furnishes specified sureties and only after such information is communicated and the sureties are not fur nished, that he may proceed to remand. 28. Similarly, in the present case it is only when the person to be searched is informed that he has a right to select and he does not select, that the officer concerned can proceed to search. Any search conducted without communicating the information of his right would be in violation of Section 50 of the NDPS Act. 29. We, therefore, respectfully disagree with the aforesaid decision of Orissa High Court and Maharashtra High Court. 30. On the other hand, the petitioners have relied upon a number of cases including the cases decided by this Court in which it has been held that the right to be informed is one of the components of the rights of the appel lant as spelt out in Section 50 NDPs 31. In the case of Jang Singh v. State of Hayana, 1988 EFR 250 (P and H), a Bench of Punjab and Haryana High Court has held that to be informend about the right to be searched in the presence of a Gazetted Officer or a Magistrate is an imperative requirement of Section 50 of the Act. It was also so held in the case of Usman Haiderkhan Shaikh v. State of Maharashtra, 1991 (1) EFR 135 (Bom) (DB), by a Division Bench of Bombay High Court and also in the case of Nathiya v. State, 1992 (2) EFB 88 ; Wilson Dayal v. State, 1993 (1) Crimes 207 ; Bandu . State of Madhya Pra desh, 1991 (2) EFR 419 ; Amrit Singh v. State of Haryana, 1991 (1) EFR 94 ; Amritram v. Sessions Judge, Ratlam, 1991 (2) EFR 84 ; Gena Ram v. State ofrajasthan, 1991 (2) EFR 358 ; State of Punjab v. Bakhshish Singh, 1992 (2) EFR 299 and a number of other cases. Mention may also be made of a Division Bench case of State of H. P. v. Sudarshan Kumar, 1990 (1) EFR 13 (HP) (DB). 32. In addition to these, this view is also taken in some cases decided by this High Court. In the case of Sewa Ram v. State, 1992 (2) EFR 39 (All), it has been held that the authority connerned has to reduce the information in writing and give an opportunity to the accused to exercise the option. It was also held in the case of Dashrath Lal v. State, 1992 (2) EFR 486 (All) ; Dadan Singh v. State of U. P. , 1993 (1) EFR 435 (Ail) i 1993 JIC 300 (All), besides other cases. 33. There is, thus, predominating view of a number of the High Courts that the right to be informed is an integral part of right to select granted under Section 50 of the NDPS Act. 34. The inevitable conclusion, therefore, in the present case, would be that the obligation to inform about the right to select and obtaining such choice is a necessary constituent of the process prescribed by Section 50 of the NDPS Act. 35. The right to be informed about the right to select, being a part of provisions of Section 50 of the NDPS Act, the next question which arises for determination is whether this right is mandatory. 36. A perusal of Section 50 of NDPS Act reproduced above, would show that the person to be searched can require that he be searched before a Gazetted Officer or a Magistrate and if he so requires, he is to be taken before one to be searched. There is an addec right available to a person who selects to get himself searched in presence of a Magistrate or a Gazetted Officer, as contained in sub-section (3) of Secion 50, being that if such Officer or Magistrate sees no ground for search, he shall forthwith discharge the person without any search. This right, therefore, enables the person to be searched to represent before the Magistrate or the officer before whom he taken, the fact that his bsing subjected to search is without any reason and if he can satisfy such officer or Magistrate of his contention, he is entitled to be discharged without even a search is being conducted. These are valuable rights given to a person with specific purpose that the searches are conducted in presence of responsible officers so that they are credible and also that there has to be reasonable ground for conducting the search which contention can be raised by the person to be searched aud considered by a responsible officer. 37. These valuable rights cannot be intended by the legislature to be dependent upon the caprice of the seoarching officer, the suspicion of whose credibility is the very cause to provide these self-guards. Such an inter pretation will render the provision nugatory. 38. In coming to a conclusion whether a specific provision is directory or mandatory, the purpose of the legislation is a relevant determinant. This view is supported by the decision of the Supreme Court in Karnal Leather Karmachari Sanghathan v. Liberty Footwear Company, AIR 1990 SC 247 at p. 254 :"it is well established that the wordings of any provision are not determinative as to whether it is absolute or directory. Even the absence of penal provison for non-compliance does not lead to an inference that it is only directory. The Court, therefore, must carefully get into the underlying idea and ascertain ue purpose to be achieved notwithstanding the text of the provision. "39. Thus, the very object of the modified provision of Section 50 in providing for the manner of conduct of search would stand defeated if these provisions are read as directory.40. In case these provisions are read as directory they will also render the provisions arbitrary and discriminatory. It would then be on the whim of the searching officer to inform one person and obtain the option of being searched before a Magistrate and to proceed to search another without even affording an opportunity to express his choice. It is not a mere formality. On the selection itself depend of the valuable rights of the person to ba searched. No rights can be made dependent upon the whim of an individual over the conduct of which the person whose rights are affected, has no control. 41. The consequences which will ensue on finding a provision directory or mandatory is one of the accepted modes of finding whether, a provision is mandatory. "the weighing of the consequences of holding a provision to be mandatory or directory is vital and, more often than not, determinative of the very questipn whether the provision is mandatory or directory. " Dalchand v. Municipal Corporation, Bhopal, 1982 EFR 576 (SC). 42. Another time tested principle laid down in the case of Nazir Ahmad v. King Emperor, AIR 1936 PC 253, that where a power is given to do certain thing in a certain way, the thing must be done in that way, the other methods of performance being necessarily forbidden, would also lead to the conclusion that it is mandatory for the searching officer to conduct the search only after obtaining the choice from the person to be searched. This principle was followed by the Supreme Court in the case of A. K. Roy v. State of Punjab, 1986 (4) SCC 326. 43. Because of these reasons, the provisons relating to obtaining the choice after informing of the availability of his right, is mandatory provision and we hold accordingly. Consequences of non-compiiancc 44. It having been found that the duty to inform the person to be searched about his right to select and to afford him an opportunity to select the person before whom he would be searched, are mandatory provisions of the process of search under Section 50 of the NDPS Act, any|violation of any of the aforesaid elements of the process would render the search illegal. 45. On behalf of the petitioners it was urged that the search being illegal, the investigation and trial consequent to such a search, are also illegal and, therefore, the petitioner would be entitled to bail as he would be entitled to be acquitted in the trial which is held consequent to an illegal search. For this proposition reliance was placed by the petitioners on the case of Commis sioner of Commercial Taxes, Board of Revenue, Madras v. R. S, Jhaver, AIR 1968 SC 59 ; and State of Rajasthan v. Rehman, AIR 1960 SC 210 ; and a case of this Court in Gyan Prakash v. State ofu. P. , 1993 (2) PER 58 (All) (LB). 46. On behalf of the State, learned Government Advocate, however, urged that the illegality of search does not vitiate either investigation or prose cution and, it by itself is no impediment to the prosecution or conviction of a person and, therefore, is no valid ground by itself for bail being granted on this score alone. 47. A person can be acquitted after trial only when the Court finds that the evidence produced by the prosecution against him is not sufficient to sus tain conviction or when there is some specific statutory provision which bars trial or conviction of such a person. 48. No specific provision was shown by the learned Counsel for the peti tioners to the effect that if the search is illegal, the person cannot be prosecuted or that if prosecuted [he has to be acquitted. Therefore, it cannot be urged that an illegal search is by itself a ground for acquittal of a person. 49. Similarly, no provision was pointed out according to which a charge-sheet cannot be maintained on the basis of a search which is illegal or that evi dence of search which is illegal cannot be admitted in trial. 50. Safeguards are provided for search with a view to see that there is a credible process of recovery and if duly followed, they will render the search credible and reliable. If any of these safeguards is not followed, the only con sequence would be that the credibility which attaches itself to a lawful search may not be available to a search which has not been conducted in accordance with law and the weight of such evidence would be much less than the weight which would attach itself to a lawful search. 51. Search conducted in violation of law is not rendered inadmissible in evidence. The provisions contained in the Evidence Act which regulate admis-sibility of evidence are very clear in this regard that any evidence which is re levant is admissible unless there is specific provision which bars its admissibility. That an article was recovered consequent to a search if a fact relevant to prove that the person was in possession of that article. In any case where the ques tion of possession of that article is an issue, the fact that article was recovered from him would be a relevant fact and unless the evidence is such the admis sibility of which is barred by a specific provision of law, it would be admissible. 52. No specific provision of law has been pointed out which even by implication bars the admissibility of search conducted in violation of manda tory provisions of law. It cannot, therefore, be said that a search which is so conducted as to violate the mandatory provisions of law cannot be admitted in evidence and, therefore, the prosecution would necessarily fail in absence of evidence of recovery. However, as has been pointed out above the probative value of such evidence would be much lesser and its credibility will always depend upon other circumstances and corroborative evidence. The other conse quence of illegal search, as has been accepted in some of the cases, is that the person who is being searched can resist the search if mandatory provisions of search are violated. 53. There is series of cases decided by the Supreme Court laying down the consequences of illegal searches and to find the effect of an illegal search, we can do no better than to consider these cases. 54. Though the law in this regard was the same even before the coming into force of the Constitution and it had been held in the beginning of this century in Crown v. Nabu, 4 Cr LJ 290, that an illegal search would not affect the admissibility of the recovery, it has now been laid down by the Supremo Court also. 55. The first case relied upon by the petitioners is State ofrajasthan v. Rahman (supra). In this case, the Deputy Superintendent of Central Excise received information that Rahman and his father had cultivated tobacco but had not paid excise duty. He set out to search the house of Rahman. The search was obstructed by him and it resulted in some injuries to the searching officers. Rahman was prosecuted for having committed an offence punishable under Section 353,i. P. C. and convicted by tho trial Court. The Court in appeal found that the search had not been conducted in accordance with the provi sions of Section 165, Cr. P. O. and remanded the case for fresh trial. Rahman was acquitted which acquittal was sustained by the High Court. 56. The Supreme Court in this case merely considered the right to resist an illegal search and upheld it. The question of admissibility of evidence of recovery or the effect of illegal search on investigation or prosecu tion was not involved in this case nor was it considered by the Supreme Court. 57. The next case in this regard in Radha Kishan v. State, AIR 1963 SC 822. The accused was a postman. A search of his house yielded a num ber of undelivered letters post-cards and registered letters. The accused was tried for offences under Section 52 of the Indian Post Office Act and Sections 467 and 471 of Indian Penal Code. One of the pleas raised on behalf of the accused was there the search was not conducted in accordance with law and was illegal and, therefore, the recovery was vitiated and could not be proved against him. This contention was rejected by the Supreme Court:"so far as the alleged illegality of the search is concerned, it is suffi cient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. It may be that where the provisions of Sections 103 and 165, Code of Criminal Procedure are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues. "58. This case squarely decided the question raised in the present case by saying that the illegal search entails only two consquences. It can be resist ed. Its credibility stands reduced and the Court may examine it more carefully No other consequence follows. It does not vitiate either the investigation con sequent to the search nor does it affect the trial based on the recovery in an illegal search. 59. It was urged on behalf of the petitioners that in this |case the Supreme Court did not consider the case of State ofrajasthan v. Rahman (supra). 60. The points involved in the two cases were totally different. In tho case of Radha Kishna the admissibility of search was considered while in Rahman's case the right to resist an illegal search was involved. 61. Commissioner of Commercial Taxes, Board of Revenue, Madras (supra), was relied upon by the learned Counsel for the petitioners to argue that the illegal search was found to be non est and the articles recovered during the search were required to be returned. In this case the search had been con ducted under the provisions of Section 41 (4) of Madras General Sales Tax Act which conferred the power to seizure and confiscate the goods. This provision was found to be ulta vires of the Constitution and, therefore, invalid. It was, therefore, not merely illegality in the process of search but the very liability to be searched for those goods, having been found to be non-existent, there was no option but to restitute the goods ;"it follows, therefore, that anything recovered from search of the resi dential accommodation on the basis of this defective warrant must be returned. It also follows that anything confiscated must also be returned, as we have held that sub-section (4) must fall. "The Supreme Court also went on to direct that the account books seized in violation of Seetion 165 should also be returned. 62. Mere possession of those account books did not constitute an offence. The question whether such recovery could be proved in a Court of law or not was not at all considered in this case, nor was the question whether the proceedings could be continued even after illegal search on the basis of recovery considered. This case, therefore, does not support any contention raised on behalf of the petitioner. 63. Learned Government Advocate also placed reliance on the case of Pooran Mai v. Director of Inspection (Investigation) of ^income Tax, AIR 1974 SC 348. One of the arguments addressed in this case was that to admit evidence of recovery consequent to an illegal search and seizure would be against the spirit of the Constitution. Negativing this argument it was held:"as to the argument on 'the spirit of our Constitution', we can do not better than quote from the judgment of Kania, C. J. In A. K. Gopalan v. State of Madras, 1950 SCR 88 at 120 : AIR 1950 SC27. "there is considerable authority for the statement that the Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in words. Where the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature we cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument. It is difficult upon any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written Constitution given that authority. "now, if the Evidence Act, 1872 which is a law consolidating, defining and amending the law of evidence, no provision of which is challenged as violating Constitution-permit relevancy as the only test of admissibility of evidence (See Section 5 of the Act) and, secondly, that Act or any other similar law in force does not exclude relevant evidence on the ground that it was obtained under an illegal search or seizure, it will be wrong to invoke the supposed spirit of our Constitution for excluding such evidence. Nor it is open to us to strain the language of the Constitution, because some American Judges of the American Supreme Court have spelt out certain constitutional protections from the provisions of the American Constitution. In 1954 SCR 1077 : AIR 1954 SC 33, already referred to a search and seizure made under the Criminal Proceduae Code was challenged as illegal on the ground of viola tion of the fundamental right under Article 20 (3), the argument being that the evidence, was no better than illegally compelled Evidence. In support of that contention reference was made to the Fourth and Fith amendments of the American Constitution and also to some Amerian cases which seemed to hold that the obtain ing of incriminating evidence by illegal seizure and search tanta-mounts to the violation of the fifth amandment. The Fourth amendment does not place any embargo on reasonable searches and seizures. It provides that the right of the people to be secured in their persons, papers and effects against unreasonable searches and seizures shall not be violated. Thus, the privacy of a citizen's home was specifically safeguard under the Constitution, although reasonable searches and seizures were not taboo. Repelling the submission, this Court observed at p. 1096. ""a 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. When the Consti tution- makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction. Nor is it legitimate to assume the constitutional protection under Arti cle 20 (3) would be defeated by the statutory provision for searches. "it therefore, follows that neither by invoking the spirit of our Con-'stitution nor by a strained construction of any of the fundamental rights can we spell out the exclusion of evidence obtained on an illegal search. "so far as India is concerned its law of evidence is modelled on the rules of evidence which prevailed in English law. and Court in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure. In Barindra Kumar Ghose v. Emperor, 1910 1lr 37 Cal 467, the learned Chief Justics Sir Lawrence Jenkins says at p. 500 :Mr Dathas attacked the searches and has urged that, even if there was jurisdiction to direct the issue of search warrants as I hold there was, still the provisions of the Criminal Procedure Code have been completely disregarded. On this assumption he has contended that the evidence discovered by the searches is not admissible, but to this view I cannot accede. For, without in any way countenancing diregard of the provisions prescribed by the Code I hold that what would otherwise be relevant does not become irrelevant because it was discovered in the course of a search in which those provisions were disregarded. As Jimutavahana with his shrewd common sense observes 'a fact cannot itered by 100 texts' and as his commentator quaintly remarks :if a Brahmana be slain, the preceptslay not a Brahmana does not annul the murder," But the absence of the Precaution designed by the legislature lends support to the argument that the alleged discovery should be careiully scrutinized. "64. After discussing some other cases, it was held that in India where the test of admissing of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other laws, evidence obtained as a result of illegal search or seizure is not liable to be shout out 65. The question again came up for determination before the Supreme Court in State of Maharashtra v. Natwarlal Damodardas Soni, 1981 SCC (Cr) 98, relying on the case of Radha Krishna (supra) and State of Kerala v, Alasserry Mohammad, AIR 1978 SC 933 and some American cases the contention raised on behalf of the respondent that search and seizure by the police being illegal, the trial stood vitiated, was negatived. In the case of Dr. Pradeep Singh v. Director of Enforcement Foreign Regulation Act, AIR 1985 SC 989, also it was held that illegality of'search does not vitiate the trial and that the only consequence which ensues is to examine carefully the evidence regarding seizure. 66. This Court followed this view in a Division Bench decision in Yogesh Kumar v. State, 1993 JIC 155. 67. The learned Counsel for the petitioners relied on K. L. Subhayya v. State ofkarnataka, AIR 1979 SC 711, to urge that illegality of search vitiates trial. The Mysore Excise Act contains provisions about recording of grounds of belief of an offence being committed, when search warrant cannot be obtained without affording the offender an opportunity of escape or of con cealing evidence of the offence, before proceeding to search and seizure. No such memorandum was prepared before search in this case :"in the instant case, it is admitted that the Inspector who searched the car of the appellant had not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus, the provisions of Section 54 were not at all complied with. This, therefore, renders the entire search without jurisdiction and as a corollary vitiates the conviction. 68. This decision has not noticed any of the aforesaid decisions of the Supreme Court where after a detailed discussions, contrary conclusions were rearched. Poorau Mai (supra), was decided by a Bench of Five Judges and involved an identical question about the consequence of search conducted in violation of Section 132 of the Income Tax Act and rule 12 of the Rules framed under the Act. In the face of consistent law laid down in a number of cases, the ratio in K. L. Subhayya (supra), rendered by Bench of two Judges, cannot be accepted as a binding precedent. 69. Thus, there is consistent line of decisions about the consequences of illegal search. These conclusions can be summed up as under :70. Firstly, an illegal search does not vitiate investigation or trial consequent to the recovery or the seizure made in an illegal search. Secondly, the person who is being searched illegally, can resist the search. Thirdly, the fact of recovery of an article in an illegal search is ad missible in evidence if the rules of relevancy permit such evidence to be accepted. Such evidence cannot be shut out only on the ground of illegality of search. 71. Fourthly, the Court will assess the credibility of such recovery in the context of other evidence and attending circumstances in each of cases. If may not attach the same weight as it would to a lawfully condutced search. 72. Thus, we are of the opinion that where a search has been conducted in violation of provisions of Section 50 of the NDPS Act, the search would he rendered illegal yet it would not vitiate the investigation or trial and would be admissible in evidence to prove the fact of possession of the article recovered However, it will be open to the Court in each of the cases to find whether the evidence is sufficient to prove the recovery. The evidentiary value of such search is debilitated by its illegality and needs support from other circumstances and material. Illegal search as a ground for bail :73. On behalf of the petitioners, it has been urged that an illegal search by itself is a sufficient ground for grant of bail specially because it seriously jeopardises the rights of the accused under trial. In support of this con tention, reliance has been placed by them on a number of cases, some of them being Dayanand v. State, 1992 (2) EFR 201 ; Vidyadhar Dolai v. State, 1993 Cr LJ 260 ; Shanker Vithoba Behare v. State,1992 (2) EFR 9. In these cases it has been held that violation of statutory provisions is a ground which would show that the accused was not guilty and therefore, would be entitled to bail. Our own High Court in the cae of Dadan Singh v. State, 1993 (1) EFR 435 : 1993 JIG 300 (All) and Sewa Ram v. State, 1992 (2) EFR 39 ; 1992 JIC 492 (All), has held that the violation of Section 50 (1) of NDPS Act raises a presumption of prejudice to the accused and is a sufficient ground to grant bail. Similarly, in the case of Dashrath Lal v. State, 1992 (2; FER 486 I 1992 JIC 739 (All), it was held that violation of mandatory provisions of law entitles a person to bail. 74. On the other hand learned Government Advocate has urged that mere violation of law by itself is not a sufficient reason to grant bail. It was urged that bail has to be considered on certain relevant considerations and merely because an illegality has been committed during investigation or search, it may not be a factor relevant for consideration in the grant of bail and not in any case, sole consideration for grant of bail. Reliance was placed on a number of cases. 75 These contending assertions can be tested for the validity of either only on the anvil of the correct legal criteria for identifying the relevancy of grounds for bail consideration. (a) Criteria in grant of bail ;76. The provisions for grant of bail are contained in Section 436 to 439, Crpc. Under Section 436 the Court or Police Officers have to grant bail in bailable offences except when a person commits a breach of conditions of bail. It would then be in the discretion of the Court to grant bail to him. Section 437 deals with grant of bail by Magistrates. The cases in which Magistrate can grant bail are circumscribed by the provisions of Sec tion 437 (1). 77. Sectian 439 empowers the Sessions Judge and the High Court to grant bail. There is no statutory limitation on the nature of cases in which the Sessions Judge or the High Court may grant bail. 78. Within the prescribed area the Magistrates and in all the cases Sessions Judges and the High Court have discretion to grant bail. Though there are no innate rules contained in Section 439, Crpc yet being an exercise of judicial discretion the grant of bail has to be guided by principles which are accepted and are well understood. An unguided exercise of discretion degenerates into arbitrariness which is an anathema in judicial process. Judicial discretion is not merely the discretion exercised by a Judge, but dis cretion which is exercised judicially. Judicial discretion has to be guided by relevant considerations based on well defined ^principles. Judicial discretion and arbitrariness are both selection of a specific response in a multi-response situation. The only factor which distinguishes them is that in the case of judicial discretion such selection is based on well-understood principles. While an arbitrary selection does not respond to any principle. "as has been indicated, discretionary powers must always be exercised in good faith, for the purpose for which they were granted and within the limits of the Act or other instrument conferring the power. Discretion must also be exercised fairly, not capriciously and in accordance with proper legal principles ; and these standards imply that all relevant considerations must be taken into account and that extraneous considerations be disregarded by the person or body exercising the power. "(Halsbury's Laws of England Vol. I, Para 68 Fourth Edition) 79. Judicial discretion ought to be exercised on principles which are well understood, was stated by the Supreme Court in Shakuntala Devi v. Kuntal Kumari, AIR 1969 SC 575, relying on the case of Krishna v. Chattappan, 1890 ILR (13) Mad 269. In D. L. Davendra Singh v. Sd. Khwaja, AIR 1973 SC 2457, it was stated that discretionary power must be exercised on sound reasonable grounds guided by principles and capable of correction by a court of appeal. 80. In Babu Singh v. State of U. P. , 1978 (1) SCC 579, a number of authorities were cited to show that every discretion must rest on principles. 81. Absence of such principles would render the exercise of discretion "law of tyrants ; it is always unknown ; it is different in different men ; it is casual and depends upon Constitution, temper and passion. In the best, it is often times caprice ; in the worst it is very vice, folly and passion to which human nature is liable. . . . . . "in the words of Loard Camden as reproduced in the aforesaid case. 82. It is, therefore, imperative that the judicial discretion be exercised on some well-recognised principles which are explicit and capable of being known to persons whose cases are to be decided on the application of those rules. Otherwise it would be arbitrary and voilate rule of law. 83. Another important reason in the discretion, specially when appli cable to the consideration of bail, for its being based upon reason and well known principles is that this order has the potential to deprive a man of his liberty as guaranteed by Article 21 of the Constitution, This process, there fore, must respond to the last clause of the said Article, 'procedure established by law :"personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the curial power to negate it is great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of 'procedure established by law. ' The last four words of Article 21 are the life of that human right. " has been stated in the case of Babu Singh v. State ofuttar Pradesh (supra). 84. After this clause has been interpreted in Menaka Gandhi v. Union of India, 1978 (1) SCC 248, it is beyond the pale of polemics that any pro cess which is likely to deprive a man of his liberty has to be resonable fair and just, in order to meet the challenge of Article 21 of the Constitution. 85. It was so stated in the case of Gurbaksh Singh v. State of Punjab, AIR 1980 SC 1632, while considering the provisions for grant of anticipatory bail. 86. Being reasonable is not a mere cliche or platitude. The order must be based on reasons that are relevant in determining bail entitlement No procedure can be just unless it rests on objective principles which are predictable, uniform and known to the persons whose liberay is being affected. A process cannot be fair unless a uniform set of principles is followed in all bail determinations and only relevant consideration relied upon. 87. The bail decisions, therefore, have necessarily to be guided by principles which are explicit and stated. 88. An order determining bail being a judicial order is to be based on reasons and reasons must be stated in the order :"bail or jail.-At the pre-trial or post-conviction stage-belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the Bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of the public treasury, all of which insisi that a developed, jurisprudence of bail is integral to a social sensitized judicial process. As Chamber Judge in this summit Court I have to deal with this uncanalised case-flow, ad hoc response to the docket being the flickering candle light. So it is desirable that the subject is dis posed of on basic principle, not improvised brevity draped as discretion". [gudikanti Narasimhulu v. Public Prosecutor, 1978 SCC (Crl) 115]. (Emphasis supplied)"against this background of social and individual facts we must consider the motion for bail. The correct legal approach has been clouded in the past by focus on the ferocity of the crime to the neglect of the real purposes of bail or jail and indifferent to many other sensitive and sensible circumstances which deserves judicial notice. The whole issue, going by decisional material and legal literature, has been relegated to a twilight zone of the criminal justice system. Courts have often acted intuitively or reacted traditionally, so much so the fate of applicants for bail at the High Court level and in the Supreme Court, has largely hinged on the hunch of the Bench as an expression of 'judicial discretion'. A scientific treatment is the desideratum. " Babu Singh v. State of Uttar Pradesh, 1979 (1) SC 579. In the aforesaid decisions the Supreme Court has specially held that the deter mination of bail should be based on the basic principles and not on subjective responses. 89. It will, therefore, be essential to identify the basic principles which govern the grant of bail. 90. The process of consideration of bail consists of three limbs : firstly, the Court has to examine the grounds put forward by the parties to select relevant ones ; secondly, the effect of each of these grounds has to be determined in context of other grounds and circumstances of the case ; and thirdly, cumulative effect of all the grounds has to be found to conclude if bail is to be granted. 91. In this case, the main question for determination is whether the illegality of search is a relevant ground and, therefore, we are concerned only with the first limb of the process which relates to the identification of grounds for their relevancy. 92. Whether a ground is relevant or not in any judicial determination is a question of law and not of discretion. Any fact which can show the presence or absence of a fact in issue or which has a bearing upon the deter mination of fact in issue would be a relevant ground. It is not in the discre tion of the Court to reject a ground as irrelevant if it shows absence or existence of a fact in issue or to admit a ground as relevant if it has no bearing on the determination of fact in issue. This question has to be determined by applying well-known principles of law. 93. In case the grounds to be considered in the grant of bail are selected without any rational process of determination of their relevancy, such selection would be per se arbitrary and potentially discriminatory. The result of not following any reason to establish the relevancy of a particular ground in con text of fact in issue can be easily demonstrated to result in conflicting decisions in respect of relevancy of the same grounds, making the process discriminatory. The High Courts, in some cases, have found the community and the place of residence, holding an elected office, inconvenience that may be caused in jail, effect on profession and leadership of an organisation etc, to be relevant considerations. None of these has any demonstrable effect on the core facts in issue and some of them have been deprecated for their being so selected, by the Supreme Court, Jaswant Singh v. State ofu. P. , 1988 (Supp) SCC 567 ; 19$8 JIG 684 (All) (LB); State of Maharashtra v. Anand Chintamani Dighe, 1990 JIG 192. 94. On the other hand, certain grounds which are relevant and have a direct bearing on the facts in issue have been found to be irrelevant. In the case of Dilip Kumar, 1989 ALJ 1205 and R. L. Jalappa, 1989 Cr LJ (NOG) 35 and in some other cases the seriousnes of offence was considered not to bo a relevant factor while in State v. Jag jit Singh, AIR 1962 SC 253, it was held to be an important determinant. Role of the accused in the commission of offence was found to be irrelevant fact in the case of K. K. Girdhar, 1989 Cr LJ 1094. Social circumstances were found to be irrelevant in the case of Shambhu Das, 1988 (1) Crimes 634. While in a number of other cases each of them has been held to be a relevant consideration. There are conflicting judge ments about illegal arrest or detention or delay, being a ground for bail each unreasoned. 95. It is, therefore, essential, to render the process of bail specially in relation to the selection of relevant determinants uniform and rational, to find rules of relevancy. 96. Once the relevant factors are identified by the process of reason, discretion vesting in the Court comes into play in evaluating each of those determinants in the context of others in a specific case and evolving a con clusion on cumulative consideration of all the relevant determinants. This part of bail decision has necessarily to involve exercise of discretion as the various permutation of different relevant grounds and the extent to which each one of them is present in a specific case cannot be pro-cast or straight jacketed. This decision has to be individualised considering all the circum stances in a specific case. 97. Only a person who is in custody pending investigation, trial or appeal is entitled to ask for bail. The Court which considers whether to grant bail, considers whether the person should continue to be in detention or can be released on terms to which he can legally be put. Uuless detention is necessary, a person may not be deprived of his liberty. Thus, the, the bail is considered 'for the bifocal interest of justice-to the individual involved and society affected', as said in Babu Singh v. State (supra):"what is often forgotten and, therefore, warrants reminder is the object to keep a person in judicial custody pending trial or disposal of appeal in the grant of bail. " was the view expressed by the Supreme Court in the case of Gudikanti Narsimhulu (supra). 99. Thus, the question to be decided in a bail application is whether they are sufficient reasons to deprive a person of his liberty during the investi gation or trial of a case. 100. The police has complete autonomy in conduct of the investigation and the Court cannot interfere in such investigation. This was said by Privy Council in King Emperor v. Nazir Ahmad, 1945 PC 18 and was accepted all along as a valid rule, M/s. Jay ant Vitamins Ltd. v. Chaitanya Kumar, J 992 (4) JT SC 487. But when the police in exercise of its investigative powers impinges on the liberty of an individual, the Courts have been required to oversee the Act through the processes of remand and bail:"the Courts oversee the action of police and exercise judicial discre tion in granting bail always bearing in mind that the liberty of a person is not neeessarily and unduly abridged and at the same time cause of justice does not suffer, Gurcharan Singh, AIR 1978 SC 179. " The function of the Court in these proceedings, therefore, is to see if the arrest and detention is for a valid reason and object. 101. A person is arrested for trial and investigation under Section 41 (1) (a) of the Cr. P. C. when there is a reasonable complaint or credible informa tion or a reasonable suspicion that he has been concerned in a cognizable offence. 102. The adjective 'reasonable' requires the complaint or suspicion to be based on some material from which it can be logically inferred that a cognizable offence has been committed, Mohammad v. Kannan, AIR 1943 Mad 218. 103. Thus, if there is no material or the materials or alleged facts do not constitute a cognizable offence, a person cannot be arrested under Sec tion 41 (1) (a). The Court can, therefore, while granting bail consider if there is absence of material, or absence of material to show that a cognizable offence has been committed. : If it is so found, the police may not have arrested and the person would be entitled to be released on bail. 104. Similarly, a case for bail would be made out if there is no neces sity to detain a person during investigation or trial, or the object of such detention would be sufficiently served by putting the petitioner to permissible terms. 105. In Rex v. Nawabzada Mahmood Hassan Khan, 1950 ALJ 335, it was held that the object of arrest is to secure attendance and bail should not be refused unless the accused is likely to abscond, terrorise witnesses or commit similar acts. 106. In Paras Ram v. The Statet 1951 HP 13, the object of pre-sentence detention was identified as to prevent absconding and danger to community. 107. Pre-trial detention is resorted to ensure that public justice is not thwarted either by absconding or tampering with prosecution evidence Kanhaiya Lal v. State, 1988 (16) Reports 257 : (1990) 2 J1c 1434 (All) (LB). The only legitimate purpose to be served by keeping persons under trial and detention is to prevent repetition of offences for which he is charged, where there is apparent danger for such repetition and to secure his attendance at the trial, was stated in Emperor v. H. L. Hutchinson, AIR 1931 All 356. 108. In Satyan v. State, 1981 Cr LJ 1313 at p. 1315, ensuring appea rance in the Court at the time of trial and to receive sentence, to prevent absconding or tampering with evidence, or trying to win over or intimidating witnesses and ensuring that his being at large would not be hazardous to the interest of the community, have been given to be the objects of pre-sentence detention. 109. The Supreme Court also considered this matter in a number of cases. In State v. Capt. Jagjit Singh, AIR 1962 SC 253, the interest of the State was found to be one of the important reasons for pre-trial detention. In State of Maharashtra v. Nainmal Punjaji Shah, 1970 SCC (Cri) 170, pre venting accused from leaving the country or tampering with evidence and interest of the State were given to be the reasons for pre-trial detention. 110. In Gudikanti v. Narasimhulu (supra), again this question was con sidered. Probability of appearance, which depended on the nature of the accusation, the nature of the evidence in support of the accusation, the severity of the likely punishment and whether the sureties are independent, or indemni fied by the accused person, his antecedents to see if he is likely to repeat the offences and inflicting further crimes on the society were found to be the reasons justifying pre-trial detention. 111. In the case of Gurcharan Singh v. State, AIR 1978 SC 179, the two paramount considerations stated were likelihood of the accused fleeing from justice and his tampering with prosecution evidence. 112. In State v. Jaspal Singh Gill, 1984 SCC (Cri) 444, security of the State in the larger interest of the State was found to be the paramount consideration. 113. A common thread visible in all these decisions can be called out and the object of pre-sentence detention can be stated as :(a) to ensure presence of the accused during investigation and trial;(b) to ensure a fair ; and (c) to protect the interest of the society and the State and social defence. Considering the scope of each of these three objects, as has been discussed above, the primary object of pre-sentence detention is to secure the presence of the accused for an effective investigation and trial. To find whether a person is likely to be available for trial, the Courts have considered a number of factors which have a bearing on probability of his fleeing from justice. Some of them like seriousness of charge, nature of evidence, severity oi' punishment, character, means and standing of the accused were held to be indices to forecast the likelihood of the accused evading trial, in the case of Nagendra Nath Chakrabarthi, AIR 1924 Cal 476. This view was followed in a number of cases, some of them being Krishna Chadra Jagti v. Emperor, AIR 1924 Lah 284 ; Sagri Bhagat, 52 Crlj 652 ; Emperor v. Nga Sans Htwa, 104 1c 101, a Full Bench decision of Rangoon High Court, Fazal Nawab Jang v. State, 1952 Crlj 873 ; Ram Chandra v. State, 1953 Crlj 17 and Krishan Singh v. State, AIR 1960 Punj 307. 114. These criteria were stated though the cause for their relevancy was not explicitly stated in Emperor v. H. L. Hutchison, AIR 1931 All 356. In State v. Capt Jagjit (supra), these were reiterared by the Supreme Court. Subsequently, they have been followed in numerous cases. . 115. The Supreme Court again re-stated these principies though basing it on authority of Archbold :"the proper test of whether bail should be granted or refused is whether it is probable that the defendant will appear to take his trial. The test should be applied by reference to the following consi derations :(1) The nature of the accusation. (2) The nature of the evidence in support of the accusation. (3) The severity of the punishment which conviction will entail. (4) Whether the sureties are independent or indemnified by the accused persons, Babu Singh v. State o/u. P. , 1978 Crlj 651. " Seriousness of the offence, nature of the offence, specially if it in-volves moral depravity, severe punishment and there being sufficient evidence are some of the factors which may induce a person to flee from justice. Character and antecedents of an accused would also show if he has propensity to abscond. His social and familial status would also be indicators of his availability. 116. Any other fact which can show whether the person would be avail able for trial or would abscond, would be relevant for this determination. Secondly, a fact which can lead to a conclusion that a fair trial will be thwart ed would be relevant consideration in the grant of bail. 117. Intimidating witnesses, tampering with evidence, trying to win over witnesses or interfering with a fair trial in any other manner would, therefore, be a valid consideration in grant of bail. 118. Social defence and protection of the interest of the State is the third object of pre-trial detention. The likelihood of the accused repeating the offences, being a potential danger to the complainant or witnesses or even the accused himself or posing danger to the security of the State would be, therefore, valid consideration, in addition to any other ground which can possibly show likelihood of such danger to the society or the State which factor has been considered as relevant in numerous cases, State v. Jaspal Singh Gill, 1984 SCC (Cri) 444. 119. A person accused of having committed a heinous offence is arrested and detained indifference to the societal expectations :"when a shocking crime occurs, the community reaction of outrage and public protesting often follows. Thereafter the open processes of justic serve an importance prophylactic purpose, provides an outlet for community concern, hostility and emotion. Richmond Newspapers I. N. C. v. Commonwealth of Verginia, 1980 65 Law ED 2d 973, quoted in Bimal Kaur Khalsa v. Union of India, AIR 1988 Punj and Har 95. "120. When a person commits a serious offence, to vindicate the social reaction and demonstrate the arm of law in action it is necessary to arrest and detain the accused. Seriousness of the offence may, therefore, justify pre-sentence detention. Even when there are sufficient grounds to assume that pro- sentence detention of an undertrial is essential as the material sufficiently discloses that he is likely to abscond or would interfere with a fair trial or be a social hazard, these grounds can over-shadow the right of liberty of such person only for a reasonable period of time requisite for investigation or trial. With endemic delays due to a number of reasons the investigation and trial may continue for decades sometimes even exceeding the maximum period of imprisonment for which a person would be liable if ultimately he is found guilty of the offence with which he is changed. All the justificatory factors for which a person may be detained during investigation and trial may eclipse the right of liberty, but only for a reasonable period of time. In case the investigation or the trial cannot be finished within a reasonable period of time, for delays of the system, the accused cannot be made to suffer. This is also policy of the Legislature spelt out in the provisions of Section 17 (2) Cr. P. C. , which provides for the maximum period of pre-trial detention during the investigation and in the provisions of Section 437 (6), Cr PC which provide for the release of a person on bail, in a summons trial, if such trial cannot be concluded within a period of sixty days with such person being in custody during the entire period. 121. Therefore, in every case, while considering the bail entitlement, the Court has to consider the entirety of the circumstances to determine the reasonable period of pre-sentente incarceration and may consider allowing bail if the period for which he has already remained in custody, has been a substantial one in the circumstances. Thus, the delay in trial or the period for which a person has remained in custody pending conclusion of a trial, is also an important determinant in the grant of bail:"a circumstances of some consequence, when considering motion of bail is the period in prison already spent and the prospect of appeal being postel for hearing regard to the suffocating crowd of dockets pressing before the few Benches. . . . . .-" was stated by the Supreme Court in the case of Babu Singh (supra). 122. Delay has been accepted to be an important factor in the grant of bail by the Supreme Court in the case of Kashmir a Singh v. State, AIR 1977 SC 2147 ; Hussainara Khaioon v. State, AIR 1976 SC 1360 ; and by this Court in the case of Sri Narain Kai, 1982 ALJ 212 ; Ram Shanker Singh v. Siate, 1988 (1) Crimes 988 : 1988 JIC 84 (All); Mahendra Singh Oberoi v. State, 1988 (2) Crimes 83 ; Rajendra Singh Shelhiya, 1988 Crlj 749 ; Natthu v. State, 1987 All Crc 344 ; Robert Lendi, 1987 Crlj 55 and Virendra Singh v. Avadhesh Kumar, 1984 A Crc 47 and in a number of other cases. 123. However, if the delay has been caused by the petitioner himself, it may not be a relevant consideration in the grant of bail, as has been held in the case of Shahzad Hasan Khan v. Jshtyaq Hasan Khan, AIR 1987 SC 1613 : 1987 L Cr R 225. 124. And lastly, the purpose of granting discretion to the Court is to individualise justice. Law cannot possibly forecast all possible situations and so a Couit is given discretion to take into account such peculiar factors which necessitate a person being freed from incarceration or being kept confined. Discretion has always been used by the Courts for humanising adminmistration of justice. It is used to infuse warmih and flexibilfty in cold and rigid rules of law as is necessary to deal with the human problems in a human manner. 125. In State v. Captain Jagjit Singh, AIR 1962 SC 253 at p. 255, the Supreme Court wanted the Court to take "into account the various considerations such as nature and seriousness of the offence, the character of the evidence, circumstances which are peculier to the accused. . ". This was followed ivgurcharan Singh Gill, AIR 1978 SC 179 and State v. Jaspal Singh, 1984 SCC (Cri) 444, by the Supreme Court. 126. Using discretion in this manner, the Courts have taken into account old age, infancy, being a woman, illness, infirmity, death or serious illness in the family and other peculiar circumstances of a case as stimuli to which the process of grant of bail responds, though sometimes to grant it only for a limited period of time. 127. A woman undergoing trial having already been convicted and sentenced to life imprisonment, was granted bail for a period of two years when it was found that she was suffering from cancer in the second stage and was getting treatment of Chemetheropy, Marie Ander Lacier et 1984 (2) SCC 434. 128. Thus, humanising the process of bail is also relevant consideration. 129. The aforesaid discussion would show that the primary deter minant, constituting the facts in the grant of bail are :(1) Whether accused if released would be available for investigation and trial;(2) Whether his release would interfere with a fair trial;(3) Whether the accused is likely to be a social hazard or a threat to the State or State or Society, if released (4) Whether there has been inordinate delay in trial:(5) Whether there is any special humanitarian reason necessitating release or incarceration of the accused ; and (6) Whether the acts allegedly committed constitute any offence or if there is material to support the allegations or if there is any legal impediment in the accused being convicted. 130. The material, however, has not to be examined in detail, Niranjan Singh v. Prabbakar R. Kharote, AIR 1980 SC 785. 131. Any ground to be relevant consideration for grant of bail has to relate itself to one of the aforesaid determinants of the grant of bail. Only the factors which are relevant to these core considerations are factors relevant in the grant of bail. 132. It was also urged that the grounds of bail have been enumerated in a number of decisions of the Supreme Court and High Courts. These considerations have necessarily to be followed as precedents by this Court. This Court stated cataloguing the bail considerations in the case of H. L. Hutchimon (supra). 133. This list was repeated in a number of cases. The Supreme Court also listed out some of the considerations in the case of State v. Captain Jagjit Singh (supra). These enumerations were also re- produced and supplemented in a number of cases by the Supreme Court and the other Courts. In the book "release on Bail", by D. C. Pandey, India Law Institute Publication, at page 102, a list of these considerations is given taking it from the Law of Bails by Soonawala (1968 Edition) in which these grounds have been collected from cases. The list reads as follows :(1) the nature of the accusation ;(2) the nature of the evidence in support of the prosecution ;(3) the severity of the punishment which conviction will eotail;(4) the. character, behaviour, means and standing of the accused ;(5) whether facts disclose a bailable offence ;(6) likelihood of the accused or any of them absconding, if released on bail:(7) the possibility of the same offence being repeated, if the accused is released on bail;(8) the danger of the accused overawing or threatening prosecution witnesses, if released on bail;(9) the possibility of the accused creating an atmosphere hostile to the conduct of the case ;(10) the possibility that the accused on release may convey information to other accused who are not arrested or charge-sheeted ;(11) opportunity to the accused to meet his Counsel and legal advisors for purposes of his defence ;(12) the failing health of the accused when he is languishing in jail as an under-trial prisoner;(13) age and sex of the accused ;(14) his past conduct and his apprehended behaviour, if released on bail;(15) the protracted nature of the trial and the fact that he is languish ing in jail since a long time ; and (16) the fact that though a long time has elapsed, the police have not submitted a charge-sheet. 134. The considerations listed out by this Court in H. L. Hutchinson, AIR 1931 All 356 ; Emperor v. Abhairaj Kunwar, 1940 Oudh 8 ; Rexe v. Nawabzada Mahmud Hasan Khan, 1950 ALJ 335 ; Mehmood Muzaffar, 1963 All 127 and by Supreme Court in State v. Captain Jagjit Singh, AIR 1962 SC 253 and Gurcharan Singh Gill, AIR 1978 SC 179, are all included in this list. 135. Each of these considerations also responds to the aforesaid objects. 136. Ground No. 5 requires the Court to find if the offence is a bailable one. If it is a bailable offence, the bail has to be granted. No other considera tion arises, except when the accused has committed a breach of terms. 137. The ground mentioned at numbers 1, 2, 3, 4, 6 and 14 relate to the likelihood of the presence of the accused during the trial. Of these, ground Nos. 4, 7 and 14 also would be relevant in predicting his behaviour after release to find if he is likely to repeat the offence and be a social hazard. No. 2 is relevant to issue No. 6. 138. The grounds mentioned at numbers 8, 9, 10 and 11 are necessary considerations in finding whether there would be a fair trial while the grounds mentioned at number 12 and 13 are individualising factors. The last two grounds relate to the delay in trial and investigation. It would, therefore, be found that all the grounds so far enumerated by the various Courts are the ones which are relevant to the nodal determinants culled out above in the process of grant of bail. Once determinants of bail have been indentified, every ground pressed for consideration can be rationally examined for its relevancy. Any fact or circumstance which can show the existence or non-existence of any of these or which can render the existence of one of these considerations probable or improbable would be a relevant factor. This is not only the rule of law, but is also a rule of reason. It not only renders the selection of relevant factors a rational process but is also the only legally permissible method of determining the relevancy of facts in a bail decision. Application of this rule eliminates subjectivity |and arbitrariness in selection of relevant considerations. (b) Relevancy of illegality of search 139. Examined on these criteria, illegal search would be a relevant consideration if it can have any bearing on the decision about any of the nodal factors. It does not affect the fairness of the subsequent trial or show the accused to be a potential hazard to the society or the State. It is not au index of the gravity of the offence. As discussed above, the material avaialble is one of the determinants of the fact whether the accused is likely to be available for trial Illegal search renders the evidence of recovery weaker and this can be considered in the grant of bail with the other material available against the accused, to this extent. 140. As it does not conclusively show absence of and reason to detain, it cannot be a sole consideration for grant of bail. (c) The effect of the provisions of Sections 37 141. The contention of the Government Advocate is that no bail can be granted for any reason whatsoever unless the provisions of Section 37 (1) (b) of ths NDPS Act are satisfied while the petitioner urged that these provisions were not attracted where mandatory provisions of the Act had been violated. 142. The provisions of Section 37 of the NDPS Act run as follows :"37. Offences to be cognizable and non-cognizable.- (1) Notwith standing anything contained in the Code of Criminal Procedure 1973 (2 of 1974)-(a) every offence punishable under this Act shall be cognizable ;(b) no person accusad of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless :(i) the public prosecutor has been given an opportunity to oppose the application for such release and (ii) where the public rposecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guity of such offence and that he is not likely to commit any offence while on bail. (2) The limitation on grant of bail specified in clause (b) of sub section (1) are in addition to the limitation under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail. "143. According to this provision whenever an application is moved for grant of bail by a person who is accused of an offence punishable under the NDPS Act and such offence is punishable with imprisonment for a period of five years or more, the following conditions have to be fulfiled before bail can be granted :(1) A notice has to be given to the Public Prosecutor affording him sufficient opportunity to oppose the application ;(2) In case the grant of bail is opposed by the Public Prosecutor, the Court should be satisfied-(a) that there are reasonable grounds for believing that the accused is not guilty of such offence and (b) the applicant is not likely to commit any offence after being released on bail. 144. In respect of the first part of the provision about giving of notice to the Public Prosecutor, no dispute was raised. 145. In support of petitioner's contention that the restriction placed by the provisions of Section 37 of the NDPS Act would not stand in the way of grant of bail where mandatory provisions of the NDPS Act are violated, reliance was placed on the case of Dashrath Lal, 1992 (2) EFR 486 (Alld), a judgment of this Court, Vidyadhar Dolai, 1993 Crlj 260 ; Shankar Vithoba Behera, 1992 (1) EFR 9 ; A. V. Dharma Singh, 1993 (1) EFR 51 ; Arvind Mehram, 1990 (3) Crimes 162 and Rajesh Shanti Lal Vaghani, 1990 Crlj 903. In last two cases, it has been held that the provisions of Section 37 do not apply to the grant of bail by High Court. 146. The question of applicability of Section 37 of NDPS Act to the grant of bails by the High Court has been finally determined by the Supreme Court in the case of Narcotic Control Bureau v. Kishan Lal, 1991 (1) EFR 390 (1) : 1992 JIG (SC) and is no longer res Integra. "for all the aforesaid reasons we hold that the powers of the High Court to grant bail under Section 439 are subject to the limitations contained in the amended Section 37 of the NDPS Act and the restrictions placed on the power of the Court under said Section are applicable to the High Court also in the matter of granting bail. "147. In view of this decision of the Supreme Court the law laid down to the contrary in the aforesaid decisions is no longer correct law. Section 37 does apply to any bail being considered in respect of an offence under NDPS Act, subject to the criterion of extent of pudishment provided. 148. Section 37 or any other provision under the NDPS Act does not stipulate non-applicability of Section 37 in any contingency, as suggested. The applicability of Section 37 to cases to which this provision applies is not contingent upon any factor. This provision begins with a non-obstante clause and, therefore, it would super-impose itself on the provisions of Section 439, Crpc under which pro vision this Court considers grant of bail. A non-obstante clause is a legisla tive device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment. Union of India v. G. M. Kokil, AIR 1984 SC 1022. Therefore, in spite of absence of these conditions in the pro-sions of Criminal Procedure Code, they will have to be considered in grant of bail under said Code. 149. Bail is a statutory right and depends on the provisions of the statute under which the trial is to be held, was said by a Full Bench of this Court in Salig Ram v. Emperor, AIR 1943 All 26 at p. 36. 150. These statutory provisions are to be found in Sections 436 to 439, Crpc. As the offences to which Section 37 applies are all non-bailable, Sections 437 and 439 will be attracted depending on whether the bail is being considered by a Magistrate or the Sessions Judge/high, Court. Each of these provisions contained in Criminal Procedure Code by operation of non-obstante clause, will be subject to the provisions of Section 37 of the NDPS Act.151. Section 37 (2) specifically provides that the limitations on the grant of bail as given in clause (b) of Section 37 (1) are in addition to the limitations prescribed by the Code of Criminal Procedure or any other law for the time being in force for the grant of bail. This shows that whatever be the provision under which grant of bail is considered even if it is under the inhe rent powers' which again are provided in the Code of Criminal Procedure, the provisions of Section 37 (1) (b) would append themselves to usual considera tion in the grant of bail, as limitations to such grant, 152. In view of these specific statutory provisions, there is no escape from the conclusion that the grant of bail on any ground including alleged non-observance of the statutory provisions in search, would still attract the appli cation of provisions of Section 37 of the NDPS Act. 153. On behalf of the petitioners it was urged that the provisions of Section 37 prescribe unreasonable restrictions on the right of liberty because though it seemingly purports to prescribe certain conditions which need to be satisfied before bail may be granted, yet in actual working it denies the right of bail by placing restriction which are incapable of being fulfilled, rendering these conditions unreasonable. It was urged that the refusal to grant bail being denial of the right of liberty, it can be done only in accord ance with the procedure established by law which procedure must be fair, reasonable and just. The provisions of this Act as contained in Section 37 being not reasonable are ultra vires of the provisions of Article 21 read with Article 14 of the Constitution and would not govern the grant of bail. 154. It was urged that requiring the Court to decide at this stage that the accused is not guilty and also to record a forecast that he is not likely to repeat the offence in future prescribe impossible conditions and no bail can ever be granted on satisfaction of these and, therefore, the provision is an unreasonable restriction on the grant of bail to the extent of negating the right to bail in respect of any offence under this Act. 155. The first clause of Section 37 (1) (b) (ii) requires recording of conclu sion that there is reasonable ground to believe that the accused is not guilty. It was urged that this belief can be recorded only when the material shows innocence of the accused and when such a situation arises, the accused cannot be remanded and would be entitled to be released. It was urged that the question of bail becomes redundant when the accused gets entitled to be releas ed or discharged. It is only when the accused would otherwise continue to be in custody that this release on bail may be considered. 156. The learned Government Advocate, however, pointed out that a Court would have reason to believe that a man is not guilty when there is some material which has the potential of resulting in acquittal. Reliance was placed by him on a number of cases. In Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632, the Supreme Court was interpreting this clause appearing in Section 438 (1), Crpc :". . . . . . . . the applicant must show that he has 'reason to believe'that he may be arrested for a non-bailable offence. The use of the expression 'reason to believe' shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief, for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively, because it is then alone that the Court can determine whether the applicant has reason to believe that he may be so arrested. Section 438 (1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. . . . . . "157. This clause in other Acts was also interpreted by the Supreme Court similarly. There must be some rational basis for the belief as may be examined, See S, Aarayanappa . C. 1. T. , AIR 1967 SC 523 ; Sheo Singh v. Appellant Assistant Commissioner, (1972) 3 SCC 239 and Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295. 158. "not guilty" is a well understood concept in the criminal juris prudence. It does not mean proven innocence. It merely means that the material is not sufficient to hold the accused guilty beyond all reasonable doubt. If there is some absence of material or there is some positive material which is likely to create such a doubt that would be sufficient for the Court at this stage to have a reason to believe that the accused is not guilty, for the purposes of this provision. In case bail is asked for at the initial stage of proceedings during investigation, there may not be entire evidence yet collected and, therefore, it may not be possible for the Court to hold that the accused would be ultimately acquitted. In this context this clause would mean only that at that stage if the Court has some material on lacuna which is likely detract from the accused being found guilty at the trial, it would be justified in having a reason to believe that the accused is not guilty. 159. Similarly the satisfaction that the accused is not likely to commit any other offence in future also does not call for a prophetic finding by the Court at this stage that the accused shall not commit any offence in future. This prediction again is not an unknown concept in the criminal jurisprudence though it has so far been used in the law relating to preventive detention. There are number of cases which deal with this concept. One of the cases being M. Mohd. Sultan v. Joint Secretary to the Government of India, Finance Department, 1991 (1) SCC 144 at page 150 :"an order for preventive detention is founded on a reasonable prognosis of the future behaviour of a person based on his past conduct, judged in the light of surrounding circumstances. Such past conduct may consist of one single act or of series of acts. It must be of such a nature that interference canreasonably be drawn from it that the person concerned would be likely to repeat such acts as would warrant his detention. "160. In saying this reliance was placed on the case of Debu Memo v. State of West Bengal, 1974 (4) SCC 135. The Supreme Court in David Patrick, JT 1992 (5) SC 163, considered some other cases including Mrs. Saraswati Shesagiri v. State of Kerala, 1982 (2 SCC 310, Debu Mahto (supra), Haradhan Shaha v. State West Bengal, 1975 (3) SCC 198 and laid down as under :"tested in the light of the above decisions certainly the acts in which the petitioner indulged would form the basis of detention. The detaining authority can base its order of detention even on a solitary act provided that the person concerned with the act in the circumstances in which it was committed, is of such a nature as would enable the formation of requisite satisfaction that the person, if not prevented by an order of detention is likely to indulge in repetition of similar acts in future. "161. The Court has, therefore, to assess the likelihood of the petitioner indulging in offences in future only from the conduct of the accused in relation to the offences with which he is charged and his past conduct, if any, material about it is produced. A person is kept in preventive detention not as a measure of punishment for what he has done but to prevent him from repeat ing the crimes in future. Reasonable prognosis of future conduct is essential foundation of the decision to detain or to impose any other preventive restriction. The conclusion can and does rest only on the past conduct and is not considered something impossible in law, 162. On behalf of the petitioners reliance was placed on Bimal Kaur Khalsa . Union of India, AIR 1985 P & H 95, a Full Beach decision of Punjab and Haryana High Court. In this case, the condition requiring satisfaction about the accused not repeating the offence before grant of bail, as appearing in Section 20 (8) of the Terrorist and Disruptive Activities (Prevention) Act was considered by the High Court. It found :"now coming to that part of the provisions of sub-section (8) of Section 20 of the Act, which imposes restrictions on the granting of bail to a person accused of an offence under the Act, it may be observed that neither public policy nor the supposed interest of the society would justify the ban on the Designated Court or the High Court to grant bail, inter alia, only if it is in a position to give a finding that when on bail, the accused was not likely to commit any offence. This would amount to making an impos sible demand on the Court, more so for the reason that an investigating officer while releasing the accused on bail in exercise of provision of Section 169, Cr. P. C. is not required to entertain any such belief of the future behaviour of the accused nor when the Designated Court decides to discharge an accused in terms of the provisions of Section 227 of the Cr. P. C. . . . . . . . . . ""imagine a situation, where an accused is produced before the Court along with the first information report and the case diaries and where neither the first information report discloses the given offence nor do the case diaries establish any connection between the accused and the commission of the supposed offence and the Court is satisfied that on the basis of the material with the police, the accused is not guilty of the offence he is charged with, yet the accused would not be entitled to be enlarged on bail unless the Court further certifies that he would not commit any offence if enlarged on bail. This places the innocent citizens at the mercy of the police. A poiice officer, out of enmity or to wreak personal vengeance or for some other reason would be in a position to lay hands on an innocent person and be able to keep him in jail, even though not a shred of evidence/material is placed before the Court for connecting the accused with the supposed crime, because the Court even in such a situation may not be in a position to say with certainty and clear conscience that the accused, if released on bail, would not commit any offence. "'as a result of the above discussion of the matter, the following pro visions of sub-section (1) of Section 16 ; that of clause (a) of sub section (4) of Section 20 and only the underlined last portion of clause (b) of sub-section (8) of Section 20 of the Act which reads : 'and that he is not likely to commit any offence while on bail' alone, out of the provisions of the Act, challenge to the constitu tional vires whereof is posed at the Bar, are held to be ultra vires such provision of the Constitution of India, as have already been indicated. . . . . . . . . . . . "163. This decision assumed that a prediction is to be recorded in fact and was incapable of being recorded. It did not consider the well accepted juristic device of concluding about the future conduct. Absence of material as may result in final report or discharged would necessarily lead to a reasonable belief that there was likelihood of repetition of the crime. We respectfully dis agree with this view. 164. Therefore, the same concept having been incorporated in Sec tion 37 as a condition precedent to grant of bajl would not render it an impos sibility. It is a rational process for a Court to follow. If from the manner in which an offence has been committed and any other material placed before the Court, it appears that the accused is professionally engaged in the trade of narcotic or psychotropic substances, it can easily be assumed that in case he is released he will indulge again in that activity. The amount of such substance, the manner in which he was carrying it and other attending circum stances would be valid considerations to come to a logical conclusion in this regard. 165. This interpretation of the two conditions has to be preferred to the interpretation suggested on behalf of petitioners for the reason that the interpretation suggested by the petitioner would render the provision an unreasonable and unjust restriction on the right of bail and create doubt about its constitutionality while the interpretation suggested by the leaf ned Government Advocate would render the provision workable and reasonable and would only call for a closer scrutiny of the material against the accused :"it is our duty in the interpretation of federal statutes to reach conclu sion which will avoid serious doubt of their constitutionality. "These words of Chief Justice Taft were relied upon by Frankfurter, J. in U. S. v. Rumely, (1952) 345 US 41. This was quoted and followed by the Supreme Court in Af/s. Shah and Co. v. State of Maharashtra, AIR 1967 SC 1877 at p. 1883. "it is well settled that if certain provisions of law construed in one way would make them consistent with constitution and another inter pretation would render them unconstitutional, the Court would lean in favour of the former construction. "This decision in Kedar Nath Singh v. State, AIR 1962 SC 955, was also quoted with approval in the aforesaid case by Supreme Court. (See also Johri Mai v. Director of Consolidation, AIR 1967 SC 1568 at p. 1574 ; Anirudha Rana Kishna Karlekar v. Smt. Jonkibai R. Bedekar, AIR 1991 SC 503 at p. 505 ;"if the strict grammatical interpretation give rise to absurdity or incon sistency, the Court could discard such interpretation and adopt an interpretation which will give effect to the purpose of the legisla tion. That could be done, if necessary even by modification of thelanuage used. " was held by the Supreme Court in the case of Union of India v. P. T. De Gamat 1991 (9) LCD 84. 166. Thus, the only interpretation which can be put on the provisions of Section 37 is that the Court has to consider the material and find if there is anything which may detract from the culpability oi the accused for a reason able prognosis that there is a reasonable ground to believe that the accused is not guilty. The Court has also to examine the facts and circumstances of the case and consider such other material as may be placed before it to find whe ther the accused is likely to repeat the offence, in the manner suggested above as is done in the cases relating to preventive detention, If interpreted in this manner, there is no impossibility of unreasonableness nor would the provi sions of Section 37 of NDPS Act be unjust or unfair. A ad the provisions will also be valid and constitutional. 167. The condition of a prognosis of the future conduct of the accused is also in keeping with the object of the pre-sentance detention from which a person is released on bail. This condition is, therefore, consistant with the purpose of bail, 168. Considering the above, we are of the opinion that Section 37 of NDPS Act does not place unreasonable restrictions on the right of bail and is not violative of Article 21 read with Article 14 of the Constitution. 169. In consideration of bail where the mandatory provisions of law relating to search have not been complied with, the Court should take the violation into account and considering it with any other set of circumstances existing in the case if it can conclude that there is material available as would detract from the accused being found guilty, on reasonable prognosis and if it also finds no material to suggest that the accused is likely to repeat the offence, the rigour placed by Section 37 would stand resolved and the bail can be con sidered under the provisions of Code of Criminal Procedure, subject to the normal criteria determining the grant of bail. Second question 170. The set of provisions referred to in this question which has been reproduced in the beginning of the opinion, can be placed in three distinct categories. Section 53 of the Criminal Procedure Code, Section 52 (1) of the NDPS Act and one limb of Article 22 (1) of the Constitution which was relied upon in this case, are substantially similar and relate to the disclosure of grounds of arrest at the time of arrest. Their violation can affect the legality of the arrest. 171. Section 42 of the NDPS Act is concerned with the process of search and requires certain information and belief to be recorded before conducting a search while sub-section (2) of Section 52 and Section 57 of the NDPS Act deal with the process of investigation*172. Each of groups can be considered separately for its effect on bail. 173. This question, thus, raises the following issues for determination :(1) What is the effect of violation of the provisions contained in Article 22 (1) of the Constitution, Section 50 (1) of the Code of Criminal Procedure and Section 52 (1) of the NDPS Act on the grant of bail under Section 439, Cr. P. C. ?(2) What is the effect of the violation of the provisions of Section 42 of the NDPS Act on the grant of bail under Section 439, Cr. P. C. ?(3) What is the effect of violation of the provisions of Section 51 (2) of the NDPS Act and 57 of the NDPS Act in the grant of bail unde'' Section 439, Cr. P. C. ?(4) What is the effect of the provisions of Section 37 of the NDPS Act on grant of bail in cases where there is violation of the aforesaid provisions ?Non-communication of grounds of arrest :Article 22 (1) of the Constitution, Section 50 (1) of the Cr. P. C. and Section 52 (1) of the NDPS Act run as follows :"article 22 (1). No person who is arrested shall be detained in custody without being informed, as soon as may be, of the ground for such arrest nor shall he be denied the right to consult and to be defended by, a legal practitioner of his choice (Constitution of India). 50 (1). Every Police Officer or other person arresting any person without warrant shall forthwith communicate to him full parti culars of the offence for which he is arrested or other grounds for such arrest (Code of Criminal Procedure). 52 (I). Any officer arresting a person under Section 41, Section 42, Section 43 or Section 44 shall, as soon as may be, inform him of the grounds for such arrest (NDPS Act). "174. The provisions of Article 22 (1) of the Constitution, Section 50 (1) of Cr. P. C. and Section 52 (1) of NDPS Act require a person arrested to be informed of the grounds of such arrest. The object of these provisions is to make the person arrested aware of the reasons for his arrest so that he can effectively defend himself and move for release, if he feels that he has been arrested in violation of any law. (In re : Mad. hu Limaye, AIR 1962 1014 and Vimal Kishore v. State of U. P. , AIR 1956 All 56). 175. Any arrest made in violation of these provisions renders the arrest illegal and also affects the validity of subsequent detention as has been held by a Division Bench of this Court in Hazari Lal v. State, 1991 LLJ 230 and in Madhu Limaye (supra), by the Supreme Court. 176. In almost all the cases cited, referred to above, it has been held that these provisions are mandatory. It has been held in the case of Majeed Mujeeb, Ajit Kumar and Subhash Bhandari (supra), that the arrest and deten tion in violation of these provisions is illegal. 177. We would, however, like to clarify that whether the provisions of Article 22 (1) have been complied with would always be a question of fact to be determined in each of the cases on consideration of all relevant materials and merely because some specific words have been used in the general diary would not be a ground to ignore other material to conclude about its compliance. 178. It has been urged on behalf of the petitioners that wherever there is violation of the aforesaid provision, the petitioner would be entitled to be released on bail. 179. Bail is merely a transfer of custody and does not relieve a person of an illegal arrest or unlawful detention completely while a person who is arrested or detained unlawfully is entitled to be relieved of that arrest or detention totally. 180. In bail, "the defendant is bailed or delivered to his sureties upon their giving security for his appearance". This is the classical concept of bail as contained in Blackstones Commentaries on the Law of England. 181. Venkatramaiya, in his Law Lexicon (p. 131) 1971 Edition, describes bail as, "the party arrested or imprisoned is delivered into the hands of those who bind themselves or become bail for his due appearance when required in order that he may be safely protected from the prison. ''182. The grant of bail provides only being delivered from the custody of jail sureties or some times himself a conditional liberty ; the person authorities to the custody of his "bail is not a remedial measure. It is an inbuilt mechanism of the administration of the criminal justice. Its basic purpose is to settle the custodial arrangement between the concerned parties, viz. , the Court and the Police in one hand and the accussed on the other hand to ensure that the person is available to the agencies of the criminal justice as and when his presence is required for the purposes of fulfilling the obligations of criminal law and justice. "(Release on Bail by D. C. Pandey, India Law Institute Publication, at 12). 183. Bail is, thus, not a remedy to which a person who has been illegally arrested, is entitled and was never conceived as one :"grant of bail is not to set the accused free but to release him from the custody of law and to entrust him in the custody of the sure ties. " (Halsburry's Laws of England, III Edition, 373). 184. It has been held in Turai Behrav. Suraj Behra, 1987 Cr LJ 1642 at p. 1464 :"if the detention of the accused is unauthorised or invalid because of the infringement of the provisions contained in Sections 167 (2), 209 or 309 (2) of the Code, he may make an application for habeas corpus or pursue remedy available to him under law but he cannot seek a bail on the mere ground that at some earlier point of time his detention was unauthorised. "This decision was followed in the case of Surat Behra v. State oforissa, 1988 Cr LJ 1508, in which this case was relied upon to hold :"illegal detention by itself and taken alone is no ground for release of the accused on bail and has not been recognised as such by the Court. Bail is no remedy and has never been conceived or indicated in law to be remedy for illegal detention. "185. Grant of bail to a person who has not been informed of the ground of his arrest is not a remedy for the defect in arrest:"as I have stated already, a person who is arrested, gets three rights which are guaranteed, the first is that he must be told why he is arrested. This requirement cannot be dispensed with by taking bail from him. "This was the opinion of a Constitution Bench of Supreme Court in State of M. P. v. Sobha Ram and others, AIR 1969 SC 1910. 186. A Full Bench of Rajasthan High Court considered this question in Mahesh Chandra v. State of Rajasthan, 1985 Cr LJ 301, saying :"there is no provision in the new Code which even if it were to be liberally construed may be said to be conferring a right on the accused to be released on bail by reason of mere fact that his custody was for some period either unauthorised or not validly authorised by the Magistrate,. . . . . He may have his legal remedy including the remedy of habeas corpus against such illegal deten tion but illegal detention by itself is no ground for bail and has not been recognised as such by the new Code'. "if an accused person is illegally detained in prison, the least that the Court of Law is expected to do for him is to quash his illegal detention and set him at liberty forthwith. Bail is no remedy tor illegal detention. Bail is a form of detention by the other means. Instead of being detained in prison, the accused is transferred to the custody of his bail who are his jailors of his own choosing and the Court still has inherent power to deal with. "187. It may, therefore, be safely held that the bail is no remedy and has never been conceived or entertained in law to be a remedy for legal detention. It was also so held by the High Court of Delhi in Nand Ram v. State, Delhi Administration, 1988 (16) Reports 268, in which the aforesaid cases were followed in holding that the bail could not be granted only because the custody was illegal. The Supreme Court also acted on this principle in the case of Ramesh Kumar Singh v. State of Bihar, 1987 (Supp) SCC 335. "we are, however, not prepared to accept Mr. Jain's contention that on account of non-production and the detention having become illegal, the petitioner has become entitled to be released on bail at this stage. "188. In Ajit Kumar Sharma v. State, 1976 Cr LJ 1303, a Division Bench of Assam High Court cancelled the bonds and set a man free when they found that the person released on bond had been illegally arrested in viola tion of Section 51, Cr. P. C. , saying that the arrest is illegal, "and conse quently the P. R. bond that had to be executed by the petitioner was also a nullity. " A person who has been arrested unlawfully cannot be required to furnish bonds or sureties, which is an essential obligation of a person granted bail. He cannot, therefore, be released on bail. 189. In the case of Easih Mia and another v. Tripura Administration, 1962 (1) Cr LJ 673, it was held :". . . . When a person is, thus, brought before a Magistrate under arrest, it is the duty of the Magistrate to see that the arrest was legally made and if he finds that the arrest was illegal, it is his duty to direct the release of the person immediately. The Criminal Procedure Code has provided the production before a Magistrate under Section 167 as a check to prevent the abuse of the wide powers given to the police for arrest without warrant. It will be wrong for a Magistrate either to order detention of the accused under Section 167, Cr. P. C. or to call upon him to. produce sureties under Section 496 or 497, Cr. P. C. if the arrest is illegal. . . . "Bail, therefore, cannot be considered as an appropriate relief for a person whose detention is illegal because he is entitled to be released from any res traint whatsoever pursuant to illegal arrest while a person released on bail continues to be subject to restraints inherent in bail. 190. Another reason for not considering illegal detention of the sole ground for compulsory bail is the anomaly that it is likely to create. A person who has been granted bail can have his bail cancelled under Section 437 (5), Cr. P. C. in case he has been granted bail under Section 437, Cr. P. C. or under Section 439 (2), Cr. P. C. , in case of any bail granted under these provisions. 191. It is no longer disputed that any person who subsequent to his release on bail commits any act which would render his detention pending trial necessary or which amounts to abuse of bail, the bail can be cancelled. After the grant of bail, if he does any act which shows that he is likely to flee from justice or likely to thwart the fair trial or is repeating the offence, the bail can be cancelled. Once he is re-taken in custody, the illegality of his arrest will again be continued and he would again be able to ask for being released on bail because of the illegality of the arrest, specially in view of the fact that the grant of bail does not obliterate the illegality of the initial arrest, as has been held in the case of State v. Sobha Rom (supra). This illegality is not curable except by release Hazari Lal (supra). A person arrested unlawfully cannot, thus, be subjected to the discipline of bail which is not suited to be dispensed to persons claiming illegality in their arrest. 192. Bail is merely suspension of detention for a limited period while a person arrested illegally is entitled to termination of detention. 193. The grant of bail for illegal detention alone cannot be considered also because bail has to be considered on the cumulative effect of all the rele vant considerations. 194. Referring to the case of Joglekar, AIR 1931 All 504, this Court in the case of Mohd. Muzaffar, AIR 1963 All 127, found that "it is not the one single circumstances which necessarily concludes the discretion but it is the cumulative effect of all the combined circumstances that must weigh with the Court in grant of bail". 195. The Supreme Court has also in most of the cases referred to above where various bail considerations have been given, stated that all of them and other considerations should be taken into account. The bail, thus, can not be granted on one or single consideration to the exclusion of others. This proposition is also supported by the decision of the Supreme Court in Stale of U. P. v. Laxmi Brahman, AIR 1983 SC 439 : 1983 LCrr 107. In this case the Court found that the Magistrate could grant a remand during the commit tal proceedings and upset the findings of the High Court to the country. It also did not agree with the opinion of the High Court that the detention being illegal, in absence of the proper remand, the accused should be granted bail, by saying this would introduce a stage of compulsory bail not envisaged by the Code and, therefore, view of the High Court was not upheld. 196. In case illegal arrest or detention is held to be sufficient ground for bail, it would frustrate the very concept and object of bail which has to be given only in respect of the specific trial to ensure his presence, fair trial and to protect the public interest and the interest of justice while illegality of arrest has no bearing on these considerations. For this reason also illegal detention cannot be a sole ground for the grant of bail. 197. Bail is necessarily given (sic) but for bail the accused would have been remanded to the judicial custody. If the arrest is illegal, the accused is entitled to be released forthwith. Thus, there is no question of administering to him half a remedy by his conditional release on bail. 198. Appropriate remedy in such a case would be for him to be releas ed by the Court itself instead of remanding him to custody. The Magistrate while remanding the accused during the investigation or a trial, perform a judicial function. The every provision requiring the accused to be produced before a Magistrate within 24 hours and his being kept in the custody only under the orders of the Magistrate is to see that the arrest is lawful and for a lawful reason. Remand is not a mere mechanical affixation of judicial stamp on the notice action. The Magistrate has to examine if there is sufficient reason for further detention and that such a detention is lawfully permissible. If a person has been arrested illegally and entitled to be set at liberty, it would not be lawful for the Court or a Magistrate to remand him to custody and to refuse to take into account the illegality that entitles him to be releas ed and be set at liberty. An order of remand should be passed after consider ing all relevant material. One passed ignoring illegality of arrest resulting from non-communication of grounds of arrest is a 'mechanical order and is ineffective". (In re : Madhu Limaye, AIR l969 SC 1014 at p. 1019 and Bir Bhadra Pratap Singh, AIR 1959 All 384. The High Court while exercising the powers under Article 226 and ordering the release in habeas corpus petition is doing nothing more than granting the right which the accused has. There is no reason why such right cannot be enforced by him before a Magistrate who considers remand under Section 167 of the Crpc or the Court considering remand under Section 209 or 309 of the Crpc. If the application in moved in a higher Court than the one which has remanded, the Court of Sessions or the High Court can exercise its power under Section 397 or 482 Crpc and on proof of illegality of the arrest or detention, it can set aside the order of remand, which in the circumstances would amount to gross abuse of power to remand. 199. Arresting without complying with provision of Article 22 (1) of the Constitution is abuse of power by arresting authority and is a material consideration for the Magistrate considering remand. All this discussion is just to point out that a person who is detained unlawfully does have a remedy in the trial Court and will not suffer only because he is not entitled to be released on bail. 200. It was also argued on behalf of the petitioners that bail is also sometimes granted by this Court and the Supreme Court to such persons who challenged their detention on the ground of its illegality, during pendency of habeas corpus petitions. It was urged that this grant of bail cannot but rest on ground of parent illegality of detention which shows that illegality of detention has been lecognised to be a valid consideration in the grant of bail.201. Bail in the strict sense of the term is the one which is granted to a. person accused of a crime, during the period of investigation or trial is pending It is this process of bail which we have considered in this case. Release of the accused pending disposal of the writ petition challenging legality of detention is not bail in the strict sense oi the term but is only an interim relief which the Court may sometime grant when there is parent illegality in the order of detention, or some other strong reason necessitating immediate release of a person. Because the writ still pending at the time the person is released, bonds are taken from him to ensure his attendance in case the petition is dismissed or where the release is permitted for a shorter period of time, for his appearance after expiry of the period. This process cannot be equated with tne bail nor are the consideration for such a release the same as are relevant in the grant of bail. To import the grounds of such release into the process of bail consideration would be as fallacious as to look for a ground relevant for grant of bail in such release. 202. In State of Bihar v. Rambalak Singh "balak" and others, AIR 1966 SC 1441, it was held that the Court had jurisdiction to grant bail as an interim relief, yet special objects of preventive detention have to be borne in mind while granting such relief :"the interim relief which can be granted in habeas corpus proceed ings must no doubt be in aid of and auxiliary to, the main relief. . . . . . . . . . "it is obvious that when the High Court releases a detenu on bail pending the final disposal of his habeas corpus petition, the High Court will no doubt take all the relevant facts into account and it is only if and when the High Court is satisfied that prime facie, there is something patently illegal in the order of detention that an order for bail would be passed. "but a detenu can be released on bail as a matter of common practice, on considerations generally applicable to cases of punitive deten tion was stated by the Supreme Court in State of U. P. v. J air am and others, AIR 1982 SC 942. "203. Thus, it would be seen that the criteria which govern the grant of bail in proceedings of habeas corpus are entirely different and do not share grounds. with the grant of bail under Cr. P. C. 204. The contention of the petitioners, therefore, that illegality of detention would be a ground for grant of bail, on this score is also not tenable.205. We are, therefore, of the opinion that the illegality of the arrest and detention as may result due to the violation of the provisions of Article 22 (1) of the Constitution, Section 50 (1) of the Crpc or Section 52 (1) of the NDPS Act would not be a valid reason to grant bail to the accused. Breach of Section 42 of the NDPS Act. 206. Proviso to Section 42 of the NDPS Act which provides for search of a place, reads as follows :-"provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. "207. A perusal of Section 42 would show that before an officer proceeds to conduct search in any building, conveyance or a place, he has to record the information received from any person if there is one and also to record the grounds of his belief that the search warrant or authorisation cannot be obtained without affording opportunity for concealment of the evidence or escape of the offender. 208. The violation of these provisions may render the search irregular or illegal. This question whether it would be illegal or irregular need not be gone into in this case in view of the fact that even if it renders the search illegal, as has been discussed in detail, it will not affect the legality of investigation or trial and cannot be the sole ground on which bail can be granted. It will also be considered by Court in evaluating the evidence of search with the other circumstances in the case for the purpose of bail. Illegality of the investigation. 209. Section 52 (2) and Section 57 of the NDPS Act are as follows :-"52 (2). Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the neatest Police Station or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an in ventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers of such other identi fying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country ot origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the pur pose of-(a) certifying the correctness of the inventory so prepared ; or (b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true ; or (c) allowing to draw representative samples of such drugs or sub stances in the presence of Magistrate and certifying the correct ness of any list of samples so drawn. ""57. Report of arrest and seizure.-Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure make a full report of all the particulars of such arrest or seizure to his immediate official superior. "210. If the provisions of Section 52 (2) or Section 57 are not complied with, tle investigation would be in violation of law and suffer from illegality to that extent. 211. Illegality in investigation by itself however, does not affect the result of the investigation or the trial as was held in the case of H. N. Rishbud v. State of Delhi, AIR 1955 SC 196. It was followed in a number of cases. In Khandu Somu Dhobi and another v. State of Maharashtra, AIR 1972 SC 958 at page 962, it has been held :"an illegality committed in the course of investigation does not affect the competence and jurisdiction of a Court to try the case. "The accused can always show that the illegality in the investigation has caused prejudice to him which fact would be taken into account in appreciat ing the evidence. 212. As a result, we find that even if there is non-compliance of provisions of Section 52 (2) or Section 57 of NDPS Act, these factors can be looked into to evaluate the evidence. The illegality would not per se vitiate the trial or be itself a ground for acquittal of the accused. 213. It being so, even for the purpose of bail, the illegality in investi gation can be only one of the factors which has to be taken into account in assessing the material against the accused. This by itself cannot be a ground tor release of the accused on bail. It has been discussed in detail above that any such ground cannot be a sole reason to release a person on bail; all the other grounds available have also to be taken into account and a decision arrived at after a composite consideration of all the relevant factors. 214. Once it is found that there are a number of relevant factors, the Courts cannot be permitted to select only one or more of them and ignore the others in considering whether bail should be granted. See Laxhmi Biahmin, case (supra). Such selection would be arbitrary at the face of it and the decision would suffer from non-consideration of relevant factors. If the Court arrives at a conclusion on a consideration of only some of the relevant factors, such decision is not lawfully arrived at, as has been dis cussed above. For this reason also the Courts cannot be permitted to select only one ground amongst a number of relevant grounds for grant or refusal of bail, unless permitted by law. Effect of Section 37, NDPS Act 215. As has been discussed above in detail, Section 37 of the Nt)PS Act requires certain considerations which have been given in detail above. Any application for bail has to undergo the process prescribed under Sec tion 37 and to satisfy the conditions laid down in it, as discussed above. Each case, therefore, will have to be considered on its own merit with reference to these conditions and no formulation can be made to specify that bail may be granted or refused consequent to the non-observance of any specified provisions of NDPS Act. 216. We would, therefore, answer the questions referred to this Bench as follows :QUESTION 1 :(a) The officer seeking to search a person under the NDPS Act is obliged to inform such person that he is being searched for suspected possession of an article under this Act and that he can select to be searched before a Magistrate or a Gazetted Officer. (b) If such information is not communicated or opportunity to select not afforded, the search is rendered illegal. (c) Mere not informing of resultant illegality will not itself entitle a person to be released on bail. It would be one of the consi derations in assessing the nature of material available against the bail applicant. (d) Section 37 of NDPS Act applies to all bails considered in respect of offences punishable under this Act and punishable with imprisonment for a period of five years or more and its requirements, in the manner discussed above, have to be satisfied before bail can be granted. QUESTION 2 :(a) Violation of the provisions of Article 22 (1) of the Constitution j Section 50 (1) of Cr. P. C. and Section 52 (1) of the NDPS Act render the arrest illegal. But this illegality of arrest is not a ground for grant of bail. (b) A search conducted in violation of Section 42 of the NDPS Act may render the search illegal and will attract the consequences given in (c) and (d) for question No. 1. (c) (i) Provisions of Section 52 (2) and Section 57 of the NDPS Act relating to investigation, if violated would constitute illegality in investigation. (ii) Such illegality is not by itself a ground to grant bail. (iii) It may be considered in assessing the nature of material available against the accused and, therefore, it a relevant factor to that extent, (iv) Provisions of Section 37 of the NDPS Act will have to be satisfied while considering grant of bail on any of these grounds. 217. After this judgment had been written a decision of the Supreme Court in the case of State of Punjab v. Balbir Singh, 1994 (1) EFR 576 (SC), was noticed in which certain questions have been decided as may have a bearing on the decision in this case. The Supreme Court has found that in certain situation infraction of the provisions of the NDPS Act relating to search would vitiate the trial. Though this question is not directly involved in the present case in which the main issue relates to the question of grant of bail, yet a person would be entitled to be released on bail if the trial against him is going to end in acquittal being vitiated. To lhat extent this decision has a positive bearing on the question in issue before us. 218. The aforesaid decision was rendered in bunch of appeals in which the main question involved was whether the persons who had been convicted consequent to the search and arrest, which was alleged to be illegal were entitled to be acquitted. 219. It was firstly decided that on failure to comply with the provi sions of the Code of Criminal Procedure in respect of search and seizure not per se vitiate the prosecution case. Non-compliance with the provisions of Sections 100 and 165 would, therefore, amount to an irregularity and the effect of the same on the main case would depend on the facts and circumstances of each case. The Court is to consider whether prejudice has been caused to the accused and also whether it has any effect on the weight of the evidence. 220. It was then held that if an arrest or seizure as permissible under Sections 41 and 42 is made under warrant issued by any Magistrate or is made by any officer, not duly empowered or authorised, it would per se be illegal and would affect the prosecution case and consequently vitiate the trial. 221. The information received by an officer is to be reduced into writing and they have also to record reason of the belief while carrying out search or arrest as provided under the provisions of Section 42 (1). To this extent, these provisions are mandatory and failure to comply with these require ments affects the prosecution case and, therefore, vitates the trial (Para 16). 222. Under Section 50 of the NDPS Act it is obligatory on the part of the authorised officer to inform a person to be searched of his right. The right to be informed is mandatory as is the obligation to search in presence of a Gazetted Officer or Magistrate in case the person to be searched so indicates. 223. The Officer empowered is expected to record reasons for his belief as required under Section 165. Failure to do so will not vitiate the trial (Para 24). 224. The aforesaid conclusions have ben summed up as follows in Para 27 ;" (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr. P. C. and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the Police Officer, who is not em powered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act. (2-A) Under Section 41 (1) only an empowered Magistrate can issue warrant tor the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. , when he has reason to believe that such offences have been committed or such sub stances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by the Magis trate who is not empowered, them such search or arrest it earned out would be illegal. 'likewise only empowered officers or duly authorised officers as enume rated in Sections 41 (2) and 42 (1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provi sions of the NDPS Act by any one other than such officers, the same would be illegal,"(2-B) Under Section 41 (2) only the empowered officer can give the autho risation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contraven tion that would affect the prosecution case and vitiate the conviction. (2-C) Under Section 42 (1) the empowered officer if has a prior informa tion given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. , he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reason or belief. But under the proviso to Section 42 (1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42 (2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42 (1) should forthwith send a copy thereof to his imme diate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whe ther the same has been explained or not, will be a question of fact in each case. (4-A) If a police officer, even if he happens to be an 'empowered' officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Crpc fails to strictly com ply with the provisions of Sections 100 and 165, Crpc including the requirement to record reasons, such failure would only amount to an irregularity. "* (4-B) If an empowered officer or an authorised officer under Section 41 (2) of the Act carries out a search, he would be doing so under the provisions of Cr. P. C. namely, Sections 100 and 165, Crpc and if there is no strict compliance with the provisions of Crpc then such search would not per se be illegal and would not vitiate the trial. "The effect of such failure has to be borne in mind by the Court while appreciating the evidence in the facts and circumstances of each case :" (5) On prior information, the empowered officer or authorised officer while acting under Sections 41 (2) or 42 should comply with the provisions of Section 50 before the search of the person is made and suchperson should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to bo searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-comp liance of Section 50 which is madatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a, question of fact. (6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officer after making arrest or seizure under Sec tions 41 to 44 are by themselves not mandatory. If there is non- compliance or if there are lapses like delay etc. , then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appre ciation of evidence regarding arrest or seizure as well as on merits of the case. " (Para 26, p. 126). 225. Our judgment to the extent it holds that informing the person to be searched about his right to be searched before a Gazetted Officer or a Magistrate are mandatory provisions in Section 50 (1) of the NDPS Act, is supported by this decision. It, however, finds that violation of Section 50 (1) and of the provision of Sections 41 and 42 vitiates the trial. 226. We have come to the conclusion that violation of provisions relat ing to search does render the search illegal, bnt it does not render either the investigation or the trial consequent to such a search, illegal. The only impact it has is to reduce the evidentiary value which fact is to be determined in the case and to afford a right to resist search. 227. In coming to the aforesaid conclusion we had relied on a number of cases of the Supreme Court most of which have not been noticed in the aforesaid judgment of State of Punjab v. Balbir Singh (supra). 228. The first of these Judgments is a decision by three Judges in Radha Kishan v. State of Uttar Pradesh, AIR 1963 SC 822, in which it has been held as follows :"___so far as the alleged illegality of the search is concerned it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. It may be that where the provisions of Sections 103 and 165, Code of Criminal Procedure are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues. "(Emphasis supplied).229. Though this relates to contravention of the provisions of Sections 103 and 165 Cr PC which has been held to be irregularity in the case of State of Punjab v. Balbir Singh (supra), yet the aforesaid decision has been rendered assuming that these violations render the search illegal. Thus, it has been explicitly held that illegal search does not have any consequence other than the right to resist and the evidence of such search to be more carefully examined. 230. This case cannot be distinguished by now holding that the infrac tion of the provision of Cr PC results only in irreguarity in the face of explicit ratio that even if it is illegal, it has only the consequence mentioned. Had the infraction been considered to be mere irregularity, right to resist would not have been conceaded in view of the provisions of Section (sic) I. P. C. 231. Radha Kishan (supra), was not noticed and, therefore, no attempt was made to distinguish it. In State ofrajasthan v. Rehman, AIR. 1960 SC 210, violation of pro?i-ilons of Cr PC in conduct of search was held to render the search illegal. 232. The decision in the case of Pooran Mai v. Director of Inspection (Investigation) of Income Tax, New Delhi and others, AIR 1974 SC 348, rendered by a Bench of five Judges, has been cited by us extensively. It held that illegality of the search does not render the evidence of search inadmis sible and that the Court had to consider its value in each case. It may be pointed out that in this case, Herman King v. The Queen, 1969 AC 304 ; was cited with approval in which case even the violation of constitutional protec tion of search was held not to be sufficient to keep the evidence from being considered. 233. This decision was also not noticed in the case of State of Punjab v. Balbir Singh (supra), State of Kerala v. Alasserry, Mohammad, AIR 1978 SC 933, is another decision by a Constitution Bench of five Judges. The question of the etfect of an illegal search was considered in this case also. The Supreme Court cited with approval a decision in the case of WT Stone, Warden. Petitioner, 74-1055 v. Lloyed Charles Powell and Charles L. Welff, Jr. Warden Petitioner, 74-1222 v. David L. Pice, 1976 USSC Bulletin Vol. 2-B 4840, where exclusionary rule was discarded and it was found that no relief could be granted to an accused only on the ground that evidence obtained in an unconstitutional search or seizure was introduced in his trial. 234. The decision in the case of State of Maharashtra v. Natwarlal Damodardas Soni, AIR 1980 SC 593, has been noticed in the aforesaid Judg ment. It says that illegality of a search does not affect the validity of the seizure and further investigation by the Custom authorities or the validity of the trial which followed on the complaint of the Assistant Collector of Customs. The dictum does not confine itself to only irregularity in the searches.235. Another case which we have referred to earlier was Dr. Pratap Singh and another v. Director of Enforcement, Foreign Exchange Regulation Act and others, AIR 1985 SC 989, in which also relying on the cases of Pooran Mai, Radha Kishan and Natwar Lal Damodardas Soni (supra), it was held that illegality of search does not vitiate the evidence collected during illegal search and that the only requirement is that the Court or the authority before which such material or evidence seized during the search shown to be illegal is placed, is to be vigilent and circumspect in dealing with such evidence or material. 236. Thus, it will be found that there are two decisions rendered by Benches of five Judges while there is another decision of a Bench of three Judges which were not considered by the Supreme Court while deciding the case State of Punjab v. Balbir Singh (supra), to hold that illegaliiy in search consequent to non-compliance of the provisions of Section 50 (1) or Section 42 or Section 43 of the NDPS Act would vitiate the trial. In our humble opinion, this decision cannot be followed in preference to the decision of the larger Benches of the Supreme Court. 237. The questions referred to the Bench should, therefore, stand and were in the manner indicated above. Brijesh Kumar, J.-I have the advantage of going through the detailed opinion, recorded by my esteemed brother J. K. Mathur, J. , as well as the conclusions drawn and answers given to the questions referred to the Full Bench. I am in gereral agreement, with the conclusions drawn and answers given, but for certain answers regarding the consequences which follow in the event of- non-compliance with the mandatory provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act). 239. In connection with the above, my learned brother Mathur, J. has though noticed the latest decision on the point, rendered by the Hon'ble Supreme Court, reported in JT 1994 (2) SC 108, State of Punjab v. Balbir Singh, but has concluded that two judgments of the larger Benches of the Supreme Court (to be referred later) have to be followed in preference to the later decision of three Judge Bench in the case of Balbir Singh (supra). I regret my inability to persuade myself that the two judgments of the Con> titution Benches of the Hon'ble Supreme Court would apply in cases where certain provisions of the NDPS Act have been violated. The Hon'ble Supreme Court in the case of Balbir Singh (supra), has directly addressed itself to the question of consequences on non-compliance of specific pro visions of the NDPS Act. While rendering its judgment, the Hon'ble Supreme Court was fully conscious of those cases where the infraction of some provisions of the NDPS Act would only result in illegality and irregu larity with a consequence that only less weight is to be attached to such evidence of search and recovery, as also those case: where it would vitiate the trial. 240. As noted by brother Mathur, J. , one such case, not noticed in the case of Balbir Singh (supra), is Pooran Mai v. Director of Inspection (Investi gation) of Income-Tax, AIR 1974 SC 348. A perusal of this judgment would indicate that the matter related to search under the provisions of the Income Tax Act and it was held by the Constitution Bench of five Judges of the Hon'ble Supreme Court that even though the search was in contravention of the provisions of Section 132 of the Income Tax Act, thus illegal, yet no writ of prohibition in restraint of use of such evidence could be granted. In my view, a search conducted under the provisions of Income Tax Act and infraction of provision of the said Act, can perhaps not be equated with the search made under the provisions of the NDPS Act in violation of some specific provisions. I would particularly like to refer to last part of para 25 of the judgment of Pooran Mai's case, where it has been held as follows :". . . . . . It was thus be seen that in India, as in England, where 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 or seizure is not liable to be shut out. "(Emphasis supplied by me). While reading the judgment in the case of Pooran Mai (supra), as a whole, the observation quoted above cannot be ignored. Necessary inference which flows from the above observation is that as a normal rule, evidence obtained by illegal search or seizure would not be shut out in the trial, but position can be otherwise also by an express provision under the law prohibiting admission of such evidence or if it is so necessarily implied. It would, therefore, not be correct to say that Pooran Mai's case lays down any absolute principle that in no case, evidence obtained as a result of illegal search, can be shut out. It would depend upon the provisions of the law, to find out if some prohibition on use of such evidence is impliedly inferable or not. In my view, while discussing different aspects and stringent provi sions of the NDPS Act as well as the purpose and intent of the legislature, the Hon'bie Supreme Court in the case of Balbir Singh (supra), came to the con clusion that the compliance of certain provisions of the Act was mandatory, failing which trial was held to be vitiated. The consideration of the matter in Balbir Singh's case is not against rather in consonance with the observa tions made in Para 25 of Pooran Mai's case, as quoted above. 141. The other decision of the Hon'ble Supreme Court by a Constitu tion Bench of five Judges, which has been referred to by brother Mathur, J. , is State of Kerala v. Alassery Mohammad, reported in AIR 1978 SC 933. It is a case under the Food Adulteration Act. It appears that according to Rule 22, a certain quantity of commodity was to be taken for sample. The sample which was taken, was less in quantity as required under the rule. The provisions was held to be directory in nature ; therefore, on infraction of the rule, it was held, it would not vitiate the trial, if the quantity was such that the analyst could analyse the same. Apart from the above distinction, it may be noted that while holding the provision to be only directory and not mandatory though the word 'shall' was used, the Hon'ble Court observed in Para 8 of the judgment as follows :"8. A few principles may now be extracted with advantage from the Seventh Edition of Craise on Statute Law :'when a statute is passed for the purpose enabling something to be done and prescribes the formalities which are to attend its perfor mance, those prescribed formalities which are essential to tho validity of the thing when done are called imperative or absolute ; but those which are no essential and may be disregarded without invalidating the thing to be done, are called directory, (at page 62) 'it is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed. . . . . . that in each case you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory. " (at Page 262) 242. The Hon'ble Supreme Court in the case of Balbir Singh's (supra), while interpreting the provisions under the NDPS Act has considered the matter in the light of the principles, as quoted above, in the Alassery Moham mad, which is abundantly clear from the observation made in Para 18 of the judgment, which reads as follows :"as discussed above, in considering whether a provision in a statute is mandatory and tho effect of non- compliance of the same, the Courts should keep in mind the real intention of the legislature keeping in view the whole scope of the Act and the particular pro visions to be construed in the context. Keeping these principles in view, we shall proceed to consider the nature of some of these-relevant provisions. "243. As observed earlier, the Hon'ble Supreme Court in the cases of Balbir Singh and Alassery Mohammad (supra), has examined the matter on the same principles. It all depends upon the subject- matter and the provi sions of the Act as a whole, which would be more relevant, for the purposes of coming to a conclusion as to whether a particular provision is mandatory or directory and what would be the consequence which may flow from non-compliance of such a provision. Reasons for holding particular provisions of an Act to be mandatory may not be good reasons for holding provisions of another Act as mandatory on the same reasons. Similarly, the reasons for holding the provisions of Section 32 of the Income Tax Act and Rule 22 of the Rules framed under the Food Adulteration Act or Sections 102, 103 and 165 of the Cr PC as only directory, breach of which may not entail the result of vitiating the trial, the same reasons may not be good for holding provisions of other Acts as directory and not mandatory, as in the present case, the Supreme Court has assigned different reasons for holding certain provisions of the NDPS Act mandatory. 244. In view of what has been discussed above, in my opinion, the view of brother Mathur, J. while holding that the decision in the case of Balbir Singh, (supra), could not be followed in preference to the decisions of the larger Benches of the Hon'ble Supreme Court, is difficult to agree with. It is also not correct to observe that reasons have not been indicated in the case of Balbir Singh for holding the provision mandatory with a consequence that the trial is vitiated. On the other hand, one would find that the pro visions of Code of Criminal Procedure, particularly Sections 4, 100, 102 and 165 separately and alongwith the provisions of Sections 41, 42, 43 and 50 and other relevant provisions of the NDPS Act, have been considered by the Hon'ble Supreme Court in the case of Balbir Singh (supra). 245. Another case referred to in the opinion of my learned brother Mathur, J. is Radha Krishan's case, reported in AIR 1963 SC 822. It is a Judgment of three Judge Bench. It may be observed that the case was noticed by the Hon'ble Supreme Court in Balbir Singh's case. It again relates to Sections 103 and 165 Cr. P. C. In respect of these, sections of Cr. P. C. same view has been taken in the case of Balbir Singh as well. 246. I may also indicate that Hon'ble Supreme Court in the case of Balbir Singh (supra), applying the principles of interpretation in regard to a provision being mandatory or directory, also made a reference to the deci sion of seven Judge Bench in the reference ^presidential Election, AIR 1974 SC 1682, as quoted at p. 121 of the judgment. The same principles were applied by the Bench of seven Judges as were applied in the case of Alasserry Mohammad and later applied in the case of Balbir Singh (supra). Therefore, in my view, there is no good reason to say that the decision of the Hon'ble Supreme Court in Balbir Singh's case (supra), cannot be followed as it runs contrary to the view taken in the cases of Alasserry Mohammad and Pooran Mai (supra). 247. Thus, my answer to the questions would differ from ones which have been given by Brother Mathur, J. only to the extent they are inconsis tent with the law, as laid down by the Hon'ble Supreme Court in the case of Balbir Singh (supra). The provisions of the NDPS Act, viz. Section 41 (2), proviso to Section 42 (1) and Section 50 have been held to be mandatorily complied with ; if they are violated, it would vitiate the trial, as held by the Hon'ble Supreme Court. I am in full agreement with the rest of the con clusions drawn and answers given by Brother Mathur, J. 248. I am further of the view that in those cases where mandatory pro visions have been violated as a result of which the trial vitates, Section 37 of the NDPS Act ceases to have effect and remains no more relevant. If trial vitiate nothing remains and there would be no reason to refuse bail on any ground including Section 37 of the NDPS Act. In respect of all other matters, Section 37 of the NDPS Act would be applicable as held by brother Mathur, J. 249. Having pronounced our opinion, we hereby direct that the opinion be placed before Hon'ble Single Judge dealing with the matters in which reference was made to the Full Bench. Appeal allowed.
"1995 JIC 141" == "1994 ACC 405 (Supp)"