Punjab-Haryana High Court
Pankaj vs State Of Punjab on 14 June, 2022
Author: Jasjit Singh Bedi
Bench: Jasjit Singh Bedi
CRM-M-25498-2021 # 1#
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
CRM-M-25498-2021
Date of Decision:-14.06.2022
Pankaj.
......Petitioner.
Versus
State of Punjab.
......Respondent.
CORAM:- HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present:- Mr. Parminder Singh Sekhon, Advocate for the Petitioner.
Mr. Kirat Singh Sidhu, Deputy Advocate General, Punjab.
***
JASJIT SINGH BEDI, J.
The Prayer in this petition under Section 439 Cr.PC is for the
grant of regular bail in case FIR No.280 dated 08.11.2020 under Sections
22, 25, 27-A and 29 of NDPS Act registered at Police Station City Sunam,
District Sangrur.
2. The brief facts of the case are that when the police party was
present at ITI Chowk, Sunam at about 10.05 pm a secret informer informed
ASI Kashmir Singh that the petitioner-accused-Pankaj was habitual of
selling intoxicating tablets and on that day also he had kept the tablets in
his white colour Activa Scooter bearing number PB-07-BJ-4106 and was
going to sell the same to his customers on the side of drain bridge situated at
Bathinda road, Sunam and if a check post was set up he could be
apprehended along with the intoxicating tablets and scooter. Since the
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information was said to be reliable, therefore, at 11.00 pm a ruqa was sent to
the police station concerned i.e. P.S. City Sunam for registering the FIR
against the petitioner. On the basis of ruqa the present FIR No. 280 dated
08.11.2020 under Sections 22, 25, 27-A and 29 of NDPS Act came to be
registered against the accused petitioner at P.S. City, Sunam, Sangrur.
3. During the course of investigation the check post was installed
and one person was seen coming from the side of the bridge riding on a
Activa scooter bearing number PB-07-BJ-4106 on which a plastic bag was
lying in front of the seat of the Activa Scooter. When he was signalled to
stop with a Torch light by SI Darshan Singh, the rider of the scooter tried to
take a U Turn but the scooter slipped and fell on the ground and after
slipping the engine stopped. Due to the same the plastic bag lying on the
scooter fell down and intoxicating tablets/strips came out. On being
apprehended the petitioner disclosed his name as Pankaj, the present
petitioner and 2000 strips, each strip containing 10 tablets i.e. 20,000
intoxicating tablets of Tramadol Hydrochloride labelled as Radol-100 was
recovered.
4. During the interrogation, the petitioner disclosed that the
intoxicating tablets were supplied to him by Surinder Singh @ Shelly son of
Gurmeet Singh resident of Sunam and he supplied the same to Ramandeep
Singh owner of Deep Medical Hall and Mehroj Kumar @ Uji. Based on the
above said statement, the said persons were nominated as accused.
5. The Counsel for the petitioner firstly submits that the search
and seizure is completely vitiated as Section 42 of the NDPS Act has been
violated. No communication of the secret information received was sent to
the superior officer within 72 hours and no reasons were recorded as to why
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warrants/authorization could not be obtained prior to conducting the
raid/setting up of a naka after sunset. The police party was travelling in a
private vehicle and the details of the ownership of the said private vehicle
had not been mentioned anywhere in the police proceedings which was a
clear cut violation of the policy framed by the government of Punjab
regarding the use of private vehicles during the investigation of a criminal
case. He further contended that the petitioner was a first time offender, in
custody since 8.11.2020 and as none of the 23 prosecution witness had been
examined, the delayed trial itself entitled him to the grant of bail more so
when his co-accused had been granted the same concession.
6. The Counsel for the petitioner has placed reliance on the
judgments in Rajender Singh Vs. State of Haryana Criminal Appeal
No.1051 of 2009 Decided on 08.08.2011, Sukhdev Singh Vs. State of
Haryana 2013(2) RCR (Criminal) 232, Darshan Singh Vs. State of
Haryana 2016(1) RCR (Criminal) 333, State of Rajasthan Vs. Chhagan
Lal 2014(4) RCR (Criminal) 559, State of Rajasthan Vs. Jag Raj Singh @
Hansa 2016(3) RCR (Criminal) 539, Boota Singh & Ors. Vs. State of
Haryana 2021(2) RCR (Criminal) 892, Syed Yusuf Syed Noor Vs. State of
Maharastra 2000(1) Crimes 193 to contend that there has been violation of
Section 42 of the NDPS Act in the instant case.
7. He contends that violation of the mandatory provisions of the
Act would entitle the accused to the grant of bail even if the recovery is of
commercial quantity of contraband. Reliance is placed upon the judgments
in Sarija Banu(A) Janathani @ Janani & Anr. Vs. State through
Inspector of Police 2004(12) SCC 266, Gurjant Singh Vs. The state of
Punjab CRM-M-20943-2022 Decided on 20.05.2022, Sarabjit Kaur Vs.
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State of Punjab CRM-M-26248-2021(O&M) Decided on 30.03.2022, Raju
Bhavlal Pawar & Ors. Vs. The State of Maharashtra 2021 ALL MR (Cri)
4651, Basanth Balram Vs. State of Kerala 2019(2) RCR (Criminal) 488
and Sudesh Singh @ Tandu Vs. State of Punjab 2011(9) RCR (Criminal)
922.
8. The Counsel for the State on the other hand contends that since
the plastic bag containing the intoxicating tablets had fallen on the ground
and when the Activa scooter slipped it could not be said that the contraband
was kept or concealed in any conveyance and, therefore, Section 42 would
not be attracted. He has placed reliance upon judgment of this Court in
Pippal Singh Vs. State of Punjab Crl. Appeal No.1039-DB-2007 Decided
on 14.11.2014 to contend that even otherwise there has been substantial
compliance of Section 42 of the NDPS Act. He further contends that heavy
recovery of the contraband has been effected from the petitioner which does
not entitle him to the grant of bail.
9. I have heard learned Counsel for both the parties at length.
10. Before proceeding further it would be apposite to refer to
Section 42 of the NDPS Act and the same is reproduced below:-
" Section 42 in The Narcotic Drugs and Psychotropic
Substances Act, 1985
1[42. Power of entry, search, seizure and arrest without warrant or
authorisation.
(1) Any such officer (being an officer superior in rank to a peon,
sepoy or constable) of the departments of central excise, narcotics,
customs, revenue intellegence or any other department of the Central
Government including para-military forces or armed forces as is
empowered in this behalf by general or special order by the Central
Government, or any such officer (being an officer superior in rank to
a peon, sepoy or constable) of the revenue, drugs control, excise,
police or any other department of a State Government as is
empowered in this behalf by general or special order of the State
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Government, if he has reason to believe from persons knowledge or
information given by any person and taken down in writing that any
narcotic drug, or psychotropic substance, or controlled substance in
respect of which an offence punishable under this Act has been
committed or any document or other article which may furnish
evidence of the commission of such offence or any illegally acquired
property or any document or other article which may furnish
evidence of holding any illegally acquired property which is liable for
seizure or freezing or forfeiture under Chapter VA of this Act is kept
or concealed in any building, conveyance or enclosed place, may
between sunrise and sunset,
(a) enter into and search any such building, conveyance or
place;
(b) in case of resistance, break open any door and remove
any obstacle to such entry;
(c) seize such drug or substance and all materials used in
the manufacture thereof and any other article and any
animal or conveyance which he has reason to believe
to be liable to confiscation under this Act and any
document or other article which he has reason to
believe may furnish evidence of the commission of any
offence punishable under this Act or furnish evidence
of holding any illegally acquired property which is
liable for seizure or freezing or forfeiture under
Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any
person whom he has reason to believe to have
committed any offence punishable under this Act:
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.
(2) Where an officer takes down any information in writing under
sub-section (1) or records grounds for his belief under the proviso
thereto, he shall within seventy-two hours send a copy thereof to his
immediate official superior.]
11. The Hon'ble Supreme Court and various High Court have
examined Section 42 of the Act comprehensively and some of the
judgments in this regard are reproduced hereinbelow:-
The Hon'ble Supreme Court in Rajender Singh Vs. State of
Haryana Criminal Appeal No.1051 of 2009 Decided on 08.08.2011 held
as under:-
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" 1. At about 4 p.m. on the 30th January 1997, PW-6 Inspector
Kuldip Singh of the CIA Staff, Hisar sent Ruqa Ex. PG to Police
Station Bhuna that while he was present at the Bus Adda of village
Bhuna in connection with the investigation of a case, he had received
secret information that the appellant Rajinder Singh @ Chhinder,
was an opium addict and also dealing in its sale, and that he had
kept some opium in the shed used for storing fodder in his farm
house, and if raid was organized, the opium could be recovered. On
the basis of the aforesaid Ruqa, a formal First Information Report
was drawn up for an offence punishable under Section 18 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter
called the "Act"). A wireless message was also sent to the DSP,
Fatehabad PW-5 Charanjit Singh to reach the spot.
2. Mr. Zafar Sadiqui, the learned counsel for the appellant, has
made four submissions during the course of the hearing. He has first
submitted that as the provisions of Section 42(2) of the Act had not
been complied with, the conviction of the appellant could not be
sustained in the light of the judgment of the Constitution Bench of
this Court in Karnail Singh vs. State of Haryana 2009 (5) RCR
(Criminal) 515 : 2009(4) Recent Apex Judgments (R.A.J.) 638 :
(2009)8 SCC 539 8 SCC 539. He has further submitted that no
serious effort had been made to associate an independent witness
with the search and seizure and that the link evidence in the case was
also missing as the Malkhana register pertaining to the recovered
opium was deposited had not been produced as evidence. He has
finally submitted that as the provisions of Sections 52, 55 and 57 of
the Act had not been complied with was an additional reason as to
why the conviction could not be sustained. Mr. Manjit Dalal, the
learned counsel for the State of Haryana, has however supported
the judgments of the courts below and has pointed out that the
Ruqa Exhibit PA had been sent to the Police Station for the
registration of the FIR and the fact that information had been
conveyed on the wireless to DSP Charanjit Singh was sufficient
compliance with the provisions of Section 42(2) of the Act. He has
also controverted the other submissions made by Mr. Sadiqui.
3. We have heard the learned counsel for the parties and gone
through the judgment impugned. To our mind, the entire controversy
hinges on Section 42 which is reproduced below:
"42. Power of entry, search, seizure and arrest without
warrant or authorization. -
(1) Any such officer (being an officer superior in rank to a
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peon, sepoy or constable) of the Departments of Central
Excise, Narcotics, Customs, Revenue Intelligence or any other
department of the Central Government or of the Border
Security Force as is empowered in this behalf by general or
special order by the Central Government, or any such officer
(being an officer superior in rank to a peon, sepoy or
constable) of the Revenue, Drugs Control, Excise, Police or
any other department of a State Government as is empowered
in this behalf by general or special order of the State
Government, if he has reason to believe from personal
knowledge or information given by any person and taken down
in writing, that any narcotic drug, or psychotropic substance,
in respect of which an offence punishable under Chapter IV
has been committed or any document or other article which
may furnish evidence of the commission of such offence is kept
or concealed in any building, conveyance or enclosed place,
may between sunrise and sunset,-
(a) enter into and search any such building, conveyance or
place;
(b) in case of resistance, break open any door and remove
any obstacle to such entry;
(c) seize such drug or substance and all materials used in
the manufacture thereof and any other article and any animal
or conveyance which he has reason to believe to be liable to
confiscation under this Act and any document or other article
which he has reason to believe may furnish evidence of the
commission of any offence punishable under Chapter IV
relating to such drug or substance; and
(d) detain and search, and if he thinks proper, arrest any
person whom he has reason to believe to have committed any
offence punishable under Chapter IV relating to such drug or
substance. Provided that if such officer has reason to believe
that a search warrant or authorization 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.
(2) Where an officer takes down any information in writing
under sub-section (1) or records grounds for his belief under
the proviso thereto, he shall forthwith send a copy thereof to
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his immediate official superior.
42(2) Where an officer takes down any information in writing
under sub-section (1) or records grounds for his belief under
the proviso thereto, he shall within seventy-two hours send a
copy thereof to his immediate official superior."
4. A reading of the above said provision pre-supposes that if an
authorized officer has reason to believe from personal knowledge
or information received by him that some person is dealing in a
narcotic drug or a psychotropic substance, he should ordinarily
take down the information in writing except in cases of urgency
which are set out in the Section itself. Section 42(2), however,
which calls for interpretation in the matter before us, is however
categorical that the information if taken down in writing shall be
sent to the superior officer forthwith. In Karnail Singh's case, this
Court has held that the provisions of Section 42(2) are mandatory
and the essence of the provisions has been set out in the following
terms:
" In conclusion, what is to be noticed is that Abdul Rashid did
not require literal compliance with the requirements of
Sections 42(1) and 42(2) nor did Sajan Abraham hold that the
requirements of Sections 42(1) and 42(2) need not be fulfilled
at all. The effect of the two decisions was as follows:
(a) The Officer on receiving the information [of the nature
referred to in sub-section (1) of Section 42] from any person
had to record it in writing in the register concerned and
forthwith send a copy to his immediate official superior, before
proceeding to take action in terms of clauses (a) to (d) of
Section 42(1).
(b) But if the information was received when the officer
was not in the police station, but while he was on the move
either on patrol duty or otherwise, either by mobile phone, or
other means, and the information calls for immediate action
and any delay would have resulted in the goods or evidence
being removed or destroyed, it would not be feasible or
practical to take down in writing the information given to him,
in such a situation, he could take action as per clauses (a) to
(d) of Section 42 (1) and thereafter, as soon as it is practical,
record the information in writing and forthwith inform the
same to the official superior.
(c) In other words, the compliance with the requirements
of Sections 42(1) and 42(2) in regard to writing down the
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information received and sending a copy thereof to the
superior officer, should normally precede the entry, search
and seizure by the officer. But in special circumstances
involving emergent situations, the recording of the information
in writing and sending a copy thereof to the official superior
may get postponed by a reasonable period, that is, after the
search, entry and seizure. The question is one of urgency and
expediency.
(d) While total non-compliance with requirements of sub-
sections (1) and (2) of Section 42 is impermissible, delayed
compliance with satisfactory explanation about the delay will
be acceptable compliance with Section 42. To illustrate, if any
delay may result in the accused escaping or the goods or
evidence being destroyed or removed, not recording in writing
the information received, before initiating action, or non-
sending of a copy of such information to the official superior
forthwith, may not be treated as violation of Section 42. But if
the information was received when the police officer was in
the police station with sufficient time to take action, and if the
police officer fails to record in writing the information
received, or fails to send a copy thereof, to the official
superior, then it will be a suspicious circumstance being a
clear violation of Section 42 of the Act. Similarly, where the
police officer does not record the information at all, and does
not inform the official superior at all, then also it will be a
clear violation of Section 42 of the Act. Whether there is
adequate or substantial compliance with Section 42 or not is a
question of fact to be decided in each case. The above position
got strengthened with the amendment to Section 42 by Act 9 of
2001."
5. It is therefore clear that the total non-compliance with the
provisions sub-section (1) and (2) of Section 42 is impermissible but
delayed compliance with a satisfactory explanation for the delay
can, however, be countenanced.. We have gone through the
evidence of PW-6 Kuldip Singh. He clearly admitted in his cross-
examination that he had not prepared any record about the secret
information received by him in writing and had not sent any such
information to the higher authorities. Likewise, PW-5 DSP
Charanjit Singh did not utter a single word about the receipt of any
written information from his junior officer Inspector Kuldip Singh.
It is, therefore, clear that there has been complete non- compliance
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with the provisions of Section 42(2) of the Act which vitiates the
conviction.
6. Mr. Dalal, the learned counsel for the respondent-State has,
however, referred to paragraph 34 of the judgment of the
Constitution Bench in which general observations have been made
with regard to the provisions of Section 41 (1) and 42(2) with respect
to the latest electronic technology and the possibility that the said
provisions may not be entirely applicable in such a situation.
Concededly the present case does not fall in this category. In any
case the principles settled by the Constitution Bench are in
paragraph 35 and have already been re-produced by us hereinabove.
Likewise, the dispatch of a wireless message to PW-6 does not
amount to compliance with Section 42(2) of the Act as held by this
Court in State of Karnataka vs. Dondusa Namasa Baddi 2010(4)
RCR (Criminal) 367: 2010(5) Recent Apex Judgments (R.A.J.) 333
: (2010) 12 SCC 495.
The Hon'ble Supreme Court in Sukhdev Singh Vs. State of
Haryana 2013(2) R.C.R. (Criminal) 232 held as under:-
" 21. As per the statement of PW1, no effort was made by him to
reduce the information into writing and inform his higher authorities
instantaneously or even after a reasonable delay which has to be
explained with reasons in writing. On the contrary, in the present
case, the Investigating Officer PW 1 had more than sufficient time at
his disposal to comply with the provisions of Section 42. Admittedly,
he had received the secret information at 11.30 a.m., but he reached
the house of the accused at 2 p.m. even when the distance was only 6
kilometers away and he was in a jeep. There is not an iota of
evidence, either in the statement of PW 1 or in any other documentary
form, to show what the Investigating Officer was doing for these two
hours and what prevented him from complying with the provisions of
Section 42 of NDPS Act.
22. There is patent illegality in the case of the prosecution and
such illegality is incurable. This is a case of total non-compliance,
thus the question of substantial compliance would not even arise
for consideration of the Court in the present case. The twin purpose
of the provisions of Section 42 which can broadly be stated are that
: (a) it is a mandatory provision which ought to be construed and
complied strictly; and (b) compliance of furnishing information to
the superior officer should be forthwith or within a very short time
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thereafter and preferably post- recovery.
23. Once the contraband is recovered, then there are other
provisions like Section 57 which the empowered officer is
mandatorily required to comply with. That itself to some extent
would minimize the purpose and effectiveness of Section 42 of the
NDPS Act. It is to provide fairness in the process of recovery and
investigation which is one of the basic features of our criminal
jurisprudence. It is a kind of prevention of false implication of
innocent persons. The legislature in its wisdom had made the
provisions of Section 42 of NDPS Act mandatory and not optional
as stated by this Court in the case of Karnail Singh (supra).
24. Thus, the present appeal merits grant of relief to the
accused. We accordingly set aside the judgment of the High Court
as well as the Trial Court and acquit the accused of an offence
under Section 15 of NDPS Act. We direct the accused to be set at
liberty forthwith, if not required in any other case.
25. Before we part with this file, we consider it the duty of the
Court to direct the Director General of Police concerned of all the
States to issue appropriate instructions directing the investigating
officers to duly comply with the provisions of Section 42 of NDPS
Act at the appropriate stage to avoid such acquittals. Compliance to
the provisions of Section 42 being mandatory, it is the incumbent
duty of every investigating officer to comply with the same in true
substance and spirit in consonance with the law stated by this Court
in the case of Karnail Singh (Supra).
The Hon'ble Supreme Court in Darshan Singh Vs. State of
Haryana 2016(1) R.C.R. (Criminal) 333 held as under:-
" 5. At the beginning of hearing the instant appeals, learned senior
counsel for the appellant informed the Bench, that he would be raising
various grounds in his challenge to the order passed by the Additional
Sessions Judge, Panipat, as also, the impugned judgment and order
passed by the High Court. Having heard the first submission,
advanced at the hands of learned senior counsel, premised on section
42 of the NDPS Act, we are satisfied, that it would not be necessary
for us to deal with the remaining submissions, and accordingly, we
did not hear learned senior counsel for the appellant, on the
remaining submissions.
6. Insofar as the contention of learned senior counsel for the
appellant under section 42 of the NDPS Act is concerned, he relied on
the interpretation placed by a Constitution Bench judgment of this
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Court on the above provisions in Karnail Singh v. State of Haryana,
2009(5) RCR (Criminal) 515 : 2009(4) Recent Apex Judgments
(R.A.J.) 638 : (2009) 8 SCC 539, wherein, this Court recorded its
conclusions in Paragraph 35, which is being extracted hereunder :
" In conclusion, what is to be noticed is that Abdul Rashid did
not require literal compliance with the requirements of
sections 42(1) and 42(2) nor did Sajan Abraham hold that the
requirements of Sections 42(1) and 42(2) need not be fulfilled
at all. The effect of the two decisions was as follows :
(a) The officer on receiving the information (of the nature
referred to in Sub-section (1) of section (42) from any person
had to record it in writing in the Register concerned and
forthwith send a copy to his immediate official superior, before
proceeding to take action in terms of clauses (a) to (d) of
section 42(1).
(b) But if the information was received when the officer
was not in the police station, but while he was on the move
either on patrol duty or otherwise, either by mobile phone, or
other means, and the information calls for immediate action
and any delay would have resulted in the goods or evidence
being removed or destroyed, it would not be feasible or
practical to take down in writing the information given to him,
in such a situation, he could take action as per clauses (a) to
(d) of section 42(1) and thereafter, as soon as it is practical,
record the information in writing and forthwith inform the
same to the official superior.
(c) In other words, the compliance with the requirements
of sections 42(1) and 42(2) in regard to writing down the
information received and sending a copy thereof to the
superior officer, should normally precede the entry, search
and seizure by the officer. But in special circumstances
involving emergent situations, the recording of the information
in writing and sending a copy thereof to the official superior
may get postponed by a reasonable period, that is, after the
search, entry and seizure. The question is one of urgency and
expediency.
(d) While total non-compliance with requirements of
subsections (1) and (2) of section 42 is impermissible, delayed
compliance with satisfactory explanation about the delay will
be acceptable compliance with section 42. To illustrate, if any
delay may result in the accused escaping or the goods or
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evidence being destroyed or removed, not recording in writing
the information received, before initiating action, or
nonsending of a copy of such information to the official
superior forthwith, may not be treated as violation of section
42. But if the information was received when the police officer
was in the police station with sufficient time to take action, and
if the police officer fails to record in writing the information
received, or fails to send a copy thereof, to the official
superior, then it will be a suspicious circumstance being a
clear violation of section 42 of the Act. Similarly, where the
police officer does not record the information at all, and does
not inform the official superior at all, then also it will be a
clear violation of section 42 of the Act. Whether there is
adequate or substantial compliance with section 42 or not is a
question of fact to be decided in each case. The above position
got strengthened with the amendment to section 42 by Act 9 of
2001."
(emphasis is ours)
7. Based on conclusion (d) recorded herein above, it was
the vehement contention of the learned senior counsel for the
appellant, that the mandate contained in section 42 of the
NDPS Act was not at all complied with, by the Station House
Officer, Police Station, Shahar, Panipat, who had received the
secret information and conducted a raid on the premises of the
accused-appellant Darshan Singh. Based on the
noncompliance of the provisions of section 42 of the NDPS
Act, requiring the officer concerned to record in writing the
details in respect of secret information received by him under
section 42(1) of the NDPS Act, and further, to communicate
the aforesaid details to the officer superior to him forthwith
[under section 42(2) of the NDPS Act], learned senior counsel
seeks setting aside of the conviction of the accused-appellant
Darshan Singh, at the hands of the Additional Sessions Judge,
Panipat, and affirmed at the hands of the High Court.
8. Whilst it was the case of the learned senior counsel for
the appellant that the provisions of section 42(1) of the NDPS
Act had not been complied with at all, learned counsel for the
respondent State vehemently contested the aforesaid assertion.
For contesting the submission advanced at the hands of the
learned senior counsel for the appellant, reliance was placed
on the factual position narrated in Paragraph 26 of the order
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dated 06.02.2001, passed by the trial court. Paragraph 26 is
being extracted hereunder :
"26. In the present case, no doubt the report of the
arrest of the accused and the seize has not been sent to
the Police Station, but in the present case immediately
after effecting the recovery, the ruqa was sent to the
Police Station and on the basis of the same formal FIR
Ex.PB/1 was recorded at 5.15 p.m. and Ex.PB1 further
proves that the copy of the said FIR was sent through
special messenger, which was received by the then
Chief Judicial Magistrate, Panipat at 8.45 p.m. on the
same day and the copy was also sent to the S.P.,
Panipat. Thus, it stands proved that about the arrest
and seizure of the accused, the information was
received by the superior officer, as such there is
compliance of Section 57 of the Act."
9. A perusal of Paragraph 26 extracted above reveals
that immediately after conducting the raid, the concerned
Station House Officer, Police Station Shahar, Panipat,
registered a first information report, which was subsequently
dispatched to the Superintendent of Police, Panipat on the
same day, i.e. to the officer superior to the officer, who had
conducted the raid (on receipt of secret information).
According to the learned counsel for the respondent-State
since first information report was sent to the superior officer,
non-compliance of Section 42 had not caused any prejudice
to the appellant, and therefore, he could claim no benefit
under Section 42.
10. The solitary question that arises for our consideration
in the instant appeal, is whether the registration of the first
information report, narrating the factual position as has
already been described at the beginning of this order, as also,
the communication of the first information report to the
Superintendent of Police, Panipat would constitute an
effective compliance of the provisions contained in section 42
of the NDPS Act.
11. Having given our thoughtful consideration to the
submission advanced at the hands of learned counsel for the
respondent, we are of the view that the mandate contained in
section 42(1) of the NDPS Act, requiring the recording in
writing, the details pertaining to the receipt of secret
information, as also, the communication of the same to the
superior officer are separate and distinct from the procedure
stipulated under the provisions of the Criminal Procedure
Code. Subsection 1 of section 41 of the NDPS Act provides
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that a Metropolitan Magistrate or a Magistrate of the First
Class or any Magistrate of Second Class specially
empowered by the State Government may issue a warrant for
the arrest of any person whom he has reason to believe to
have committed any offence punishable under Chapter IV.
Sub-section (2) of Section 41 refers to issue of authorisation
for similar purposes by the officers of the Departments of
Central Excise, Narcotics, Customs, Revenue Intelligence,
etc. Sub-section (1) of section 42 of the NDPS Act lays down,
that the empowered officer, if he has a prior information
given by any person, should necessarily take it down in
writing, and where he has reason to believe from his
personal knowledge, that offences under Chapter IV have
been committed or that 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 warrant between sunrise and sunset and he may do
so without recording his reasons of belie. The two separate
procedures noticed above are exclusive of one another.
Compliance of one, would not infer the compliance of the
other. In the circumstances contemplated under section 42 of
the NDPS Act the mandate of the procedure contemplated
therein will have to be followed separately, in the manner
interpreted by this Court in Karnail Singh's case (supra) and
the same will not be assumed, merely because the Station
House Officer concerned had registered a first information
report, which was also dispatched to the Superintendent of
Police, in compliance with the provisions of the Criminal
Procedure Code.
12. In the above view of the matter, it is not possible for
us to accept the submission of the learned counsel for the
respondent-State, that the registration of the first
information report at the hands of the Station House Officer,
Police Station Shahar, Panipat and its communication to the
Superintendent of Police, Panipat would constitute sufficient
compliance of the mandate of section 42 of the NDPS Act.
13. In aforesaid view of the matter, we are satisfied that
section 42 of the NDPS Act was not complied with at all,
insofar as the present controversy is concerned. Thus viewed,
conclusion (d) recorded in Paragraph 35 of the judgment
rendered in Karnail Singh's case (supra), would fully apply
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to the facts and circumstances of the present case, and we are
left with no other option, but to set aside the conviction and
the sentence of imprisonment of the accused-appellant
Darshan Singh. Ordered accordingly. The appeal stands
allowed.
The Hon'ble Supreme Court in State of Rajasthan Vs.
Chhagan Lal 2014(4) RCR (Criminal) 559 held as under:-
" 6. In this case, the bag was recovered from the well which the
respondent claimed belonged to him by the respondent and the
independent witness Pappu by entering in the well at 5.00 O'clock in
the morning. The High Court has clearly recorded a finding of fact
that the bag was taken out from the well after sunset and prior to
sunrise. We have no reason to disbelieve this finding.
7. According to the prosecution, the respondent threw the bag in
the well. The suspected contraband was, therefore, tried to be
concealed in a well. The possibility of its destruction was imminent.
In fact, the evidence on record indicates that water entered in the bag
and got mixed up with the opium. The opium was liquefied. This was
indeed, an emergent situation. The well had to be searched with the
help of an independent witness, which was done. In such an
emergent situation, if the officer had reason to believe that a search
warrant or authorisation cannot be obtained without affording
opportunity for the concealment of evidence (which, in this case,
would have resulted in destruction of evidence), as per proviso to
section 42(1) of the NDPS Act, he could have conducted the search
of the well after recording grounds of his belief. Section 42(2)
requires that grounds of belief so recorded have to be
communicated to the immediate superior official within seventy-two
hours. In this case, there is nothing to establish that the officer had
followed this procedure. There is nothing to establish that he
recorded grounds of his belief and communicated them to his
immediate superior. As observed by the Constitution Bench in
Karnail Singh (supra), total non-compliance of requirements of
sub-sections (1) and (2) of Section 42 is impermissible. However,
delayed compliance with satisfactory explanation about the delay
will be acceptable compliance of Section 42. Since in this case, there
is total non-compliance of section 42 of the NDPS Act, the High
Court has rightly set aside the conviction of the respondent. The
impugned order calls for no interference from this end."
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The Hon'ble Supreme Court in State of Rajasthan Vs. Jag Raj
Singh @ Hansa 2016(3) RCR (Criminal) 539 held as under:-
" 13. What Section 42(2) requires is that where an officer takes down
an information in writing under sub-Section (1) he shall sent a copy
thereof to his immediate officer senior. The communication Exh. P-15
which was sent to Circle Officer, Nohar was not as per the
information recorded in Exh. P 14 and Exh. P 24. Thus, no error was
committed by the High Court in coming to the conclusion that there
was breach of Section 42(2).
14. Another aspect of non-compliance of Section 42(1) proviso,
which has been found by the High Court needs to be adverted.
Section 42 (1) indicates that any authorised officer can carry out
search between sun rise and sun set without warrant or
authorisation. The scheme indicates that in event the search has to
be made between sun set and sun rise, the warrant would be
necessary unless officer has reasons to believe that a search warrant
or authorisation cannot be obtained without affording the
opportunity for escape of offender which grounds of his belief has to
be recorded. In the present case, there is no case that any ground for
belief as contemplated by proviso to sub-section (1) of Section 42 or
Sub-section (2) of Section 42 was ever recorded by Station House
Officer who proceeded to carry on search. Station House Officer has
appeared as PD-11 and in his statement also he has not come with
any case that as required by the proviso to Sub-section (1), he
recorded his grounds of belief anywhere. The High Court after
considering the entire evidence has made following observations:
"Shishupal Singh PD-11 by whom search has been conducted,
on reaching at the place of occurrence by him no reasons to
believe have been recorded before conducting the search of jeep
bearing HR 24 4057 under Section 42(1), nor any reasons in
regard to not obtaining the search warrant have been recorded.
He has also not stated any such facts in his statements that he
has conducted any proceedings in regard to compliance of
proviso of Section 42(1). Since reasons to believe have not been
recorded, therefore, under Section 42(2) it is not found on record
that copy thereof has been sent to the senior officials. Shishupal
Singh could be the best witness in this regard, who has not
stated any fact in his statement regarding compliance of proviso
to Section 42(1) and Section 42(2), sending of copy of reasons
to believe recorded by him to his senior officials."
18. There is one more aspect which needs to be noted. The present
is a case where prosecution himself has come with case that secret
information was received from informer which information was
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recorded in Exh. P-14 and Exh. P-21 Roznamacha and thereafter the
Station House Officer with police party proceeded towards the scene.
The present is not a case where the Station House Officer suddenly
carried out search at a public place. The Station House Officer in his
statement has also come up with the facts and case to prove
compliance of Section 42. When search is conducted after recording
information under Section 42(1), the provisions of Section 42 has to be
complied with. This Court in Directorate Of Revenue & Another v.
Mohammed Nisar Holia, 2008(1) RCR (Criminal) 241 : (2008) 2 SCC
370, had occasion to consider Sections 41,42 and 43 explanation.
Following was stated in paragraph 14:
"14. Section 43, on plain reading of the Act, may not attract the
rigours of Section 42 thereof. That means that even subjective
satisfaction on the part of the authority, as is required under sub-
section (1) of Section 42, need not be complied with, only
because the place whereat search is to be made is a public place.
If Section 43 is to be treated as an exception to Section 42, it is
required to be strictly complied with. An interpretation which
strikes a balance between the enforcement of law and protection
of the valuable human right of an accused must be resorted to. A
declaration to the effect that the minimum requirement, namely,
compliance of section 165 of the Code of Criminal Procedure
would serve the purpose may not suffice as non-compliance of
the said provision would not render the search a nullity. A
distinction therefor must be borne in mind that a search
conducted on the basis of a prior information and a case where
the authority comes across a case of commission of an offence
under the Act accidentally or per chance............."
19. Thus the present is not a case where Section 43 can be said to
have been attracted, hence, non-compliance of Section 42(1) proviso
and Section 42(2) had seriously prejudiced the accused. This Court
had occasion in large number of cases to consider the consequence
of non-compliance of provisions of Section 42(1) and 42(2), whether
the entire trial stand vitiated due to above non compliance or
conviction can be set aside. In this context reference is made to the
judgment of this Court in State of Punjab v. Balbir Singh 1994(1)
RCR (Criminal) 736 : (1994) 3 SCC 299. In the above batch of cases,
the High Court has acquitted accused on the ground that search was
conducted without conforming to the provisions of the NDPS Act.
Sections 41,42 43 and other relevant provisions came for
consideration before this Court, referring to the provisions of
Chapter IV following was stated in paragraph 8:
"8. But if on a prior information leading to a reasonable belief
that an offence under Chapter IV of the Act has been committed,
then in such a case, the Magistrate or the officer empowered
have to proceed and act under the provisions of Sections 41 and
42. Under Section 42, the empowered officer even without a
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warrant issued as provided under Section 41 will have the power
to enter, search, seize and arrest between sunrise and sunset if he
has reason to believe from personal knowledge or information
given by any other person and taken down in writing that an
offence under Chapter IV has been committed or any document
or other article which may furnish the evidence of the
commission of such offence is kept or concealed in any building
or in any place. Under the proviso if such officer has reason to
believe that search warrant or authorisation cannot be obtained
without affording opportunity for the concealment of the
evidence or facility for the escape of the offender, he can carry
out the arrest or search between sunset and sunrise also after
recording the grounds of his belief. Sub-section (2) of 8 1990
Cri LJ 414 (Del) Section 42 further lays down that when such
officer takes down any information in writing or records grounds
for this belief under the proviso, he shall forthwith send a copy
thereof to his immediate official superior."
20. After referring large number of cases, this Court recorded
conclusion in paragraph 25 which is to the following effect:
"25. The question considered above arise frequently before the
trial courts. Therefore we find it necessary to set out our
conclusions which are as follows :
(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 offences as provided under the
provisions of CrPC 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 empowered, 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 for 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 substances are kept or concealed in any building,
conveyance or place. When such warrant for arrest or for search
is issued by a Magistrate who is not empowered, then such
search or arrest if carried out would be illegal. Likewise only
empowered officers or duly authorised officers as enumerated 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 provisions
of the NDPS Act by anyone other than such officers, the same
would be illegal.
(2-B) Under Section 41(2) only the empowered officer can give
the authorisation to his subordinate officer to carry out the arrest
of a person or search as mentioned therein. If there is a
contravention, that would affect the prosecution case and vitiate
the conviction.
(2-C) Under Section 42(1) the empowered officer if has a prior
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information 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 reasons of 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 immediate 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 whether 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 comply with the provisions 'of Sections
100 and 165 Cr.P.C. 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 CrPC namely Sections 100 and 165
Cr.P.C. 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 courts
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 such person 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 be searched and if such
person so requires, failure to take him to the Gazetted Officer or
the Magistrate, would amount to non-compliance of Section 50
which is mandatory 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 officers after making arrest or seizure
under Sections 41 to 44 are by themselves not mandatory. If
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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 appreciation of evidence regarding arrest or seizure as
well as on merits of the case."
21. A three Judges Bench in Saiyad Mohd. Saiyad Umar Saiyed &
others v. The State Of Gujarat (supra) after elaborate consideration of
provisions of the NDPS Act including section 50 had endorsed the
judgment of this court in Balbir Singh's case (supra).
22. A Constitution Bench of this Court in State of Punjab v.
Baldev Singh, 1999(3) RCR (Criminal) 533 : (1999) 6 SCC 172, had
occasion to consider the provisions of the NDPS Act and several
earlier judgments of this Court. The Constitution Bench noticed that
the earlier judgments in Balbir Singh's case has found approval by
three Judges Bench in Saiyad Mohd. Saiyad Umar Saiyed & others v.
The State Of Gujarat (supra) and a discordant note was struck by two
Judges Bench in State of Himachal Pradesh v. Pirthi Chand and
another, 1996(2) RCR (Criminal) 759 : (1996) 2 SCC 37. The
Constitution Bench approved the view of this Court in Balbir Singh's
case that there is an obligation on authorised officer under section 50
to inform the suspect that he has right to be informed in the presence
of the Gazetted Officer. It was held by Constitution Bench that if
search is conducted in violation of Section 50 it may not vitiate the
trial but that would render the recovery of illicit articles suspect and
vitiates the conviction and sentence of the accused. What is said
about non-compliance of Section 50 is also true with regard to non-
compliance of Section 42 of the Act.
23. In Beckodan Abdul Rahiman v. State Of Kerala, 2002(2) RCR
(Criminal) 385 : 2002 (4) SCC 229, this Court had occasion to
consider both Section 42 and Section 50. In the above case there was
non compliance of Section 42 (2) as well as Section 50. It was also
noticed that a Constitution Bench in State of Punjab v. Baldev Singh
(supra) has already laid down that provisions of Section 42 and 50 are
mandatory and their non-compliance would render the investigation
illegal. Following was held in paragraphs 5 and 6:
" 5. In this case the violation of the mandatory provisions is
writ large as is evident from the statement of K.R. Premchandran
(PW1). After recording the information, the witnesses is not
shown to have complied with the mandate of sub-section (2) of
Section 42 of the Act. Similarly the provisions of Section 50
have not been complied with as the accused has not been given
any option as to whether he wanted to be searched in presence of
a Gazetted Officer or Magistrate.
6. We are of the firm opinion that the provisions of sub-
section (2) of Section 42 and the mandate of Section 50 were not
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complied with by the prosecution which rendered the case as not
established. In view of the violation of the mandatory provisions
of the Act, the appellant was entitled to be acquitted...."
24. It is also relevant to note another Constitution Bench judgment
of this Court in Karnail Singh v. State of Haryana, 2009(5) RCR
(Criminal) 515 : 2009(4) Recent Apex Judgments (R.A.J.) 638 : 2009
(8) SCC 539, where this Court had again occasion to consider the
provisions of Sections 42 and 50. The Constitution Bench noted the
divergence of opinion in two earlier cases which has resulted in
placing the matter before the larger Bench. The question was noticed
in paragraphs 1 and 2 of the judgment which are to the following
effect:
"(1) In the case of Abdul Rashid Ibrahim Mansuri v. State of
Gujarat, 2000(1) RCR (Criminal) 611 : (2000) 2 SCC 513, a
three-Judge Bench of this Court held that compliance of Section
42 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as "NDPS Act") is mandatory and failure
to take down the information in writing and forthwith send a
report to his immediate official superior would cause prejudice to
the accused. In the case of Sajan Abraham v. State of Kerala,
2001(3) RCR (Criminal) 808 : (2001) 6 SCC 692, which was also
decided by a three-Judge Bench, it was held that Section 42 was
not mandatory and substantial compliance was sufficient.
(2) In view of the conflicting opinions regarding the scope
and applicability of Section 42 of the Act in the matter of
conducting search, seizure and arrest without warrant or
authorization, these appeals were placed before the Constitution
Bench to resolve the issue.
(3) The statement of objects and reasons of the NDPS Act
makes it clear that to make the scheme of penalties sufficiently
deterrent to meet the challenge of well organised gangs of
smugglers, and to provide the officers of a number of important
Central enforcement agencies like Narcotics, Customs, Central
Excise, etc. with the power of investigation of offences with
regard to new drugs of addiction which have come to be known
as psychotropic substances posing serious problems to national
governments, this comprehensive law was enacted by Parliament
enabling exercise of control over"
25. After referring to the earlier judgments, the Constitution
Bench came to the conclusion that non-compliance of requirement of
Sections 42 and 50 is impermissible whereas delayed compliance with
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satisfactory explanation will be acceptable compliance of Section 42.
The Constitution Bench noted the effect of the aforesaid two
decisions in paragraph 5. The present is not a case where insofar as
compliance of Section 42(1) proviso even an arguments based on
substantial compliance is raised there is total non-compliance of
Section 42(1) proviso. As observed above, Section 43 being not
attracted search was to be conducted after complying the provisions
of Section 42. We thus, conclude that the High Court has rightly held
that non compliance of Section 42(1) and Section 42(2) were proved
on the record and the High Court has not committed any error in
setting aside the conviction order.
The Hon'ble Supreme Court in Boota Singh & Ors. Vs. State
of Haryana 2021(2) RCR (Criminal) 892 held as under:-
" 12. The evidence in the present case clearly shows that the vehicle
was not a public conveyance but was a vehicle belonging to accused
Gurdeep Singh. The Registration Certificate of the vehicle, which has
been placed on record also does not indicate it to be a Public
Transport Vehicle. The explanation to Section 43 shows that a private
vehicle would not come within the expression "public place" as
explained in Section 43 of the NDPS Act. On the strength of the
decision of this Court in Jagraj Singh alias Hansa, the relevant
provision would not be Section 43 of the NDPS Act but the case would
come under Section 42 of the NDPS Act.
13. It is an admitted position that there was total non-compliance
of the requirements of Section 42 of the NDPS Act.
14. The decision of this Court in Karnail Singh as followed in
Jagraj Singh alias Hansa, is absolutely clear. Total non-compliance
of Section 42 is impermissible. The rigor of Section 42 may get
lessened in situations dealt with in the conclusion drawn by this
Court in Karnail Singh but in no case, total non-compliance of
Section 42 can be accepted.
The Hon'ble Bombay High Court in Syed Yusuf Syed Noor Vs.
State of Maharashtra 2000(1) Crimes 193 held as under:-
" 5. Now, we revert to the main challenge based on non-compliance
of Section 42 of the Narcotic Drugs and Psychotropic Substances Act.
According to the testimony of P.W.6, while he was sitting in the Office of
the SDPO, as he was called by him along with other Police Officers, the
information, that the appellant is selling brown sugar at his residence,
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was received. The SDPO told P.W. 6 that he should inform about this
information to the SP, and he left. P.W.6 further states that he informed
the SP about it on telephone and thereafter the Police Staff, Panch
witnesses and Video Cameraman left for the residence of the appellant.
At this stage, reference may also be made to the copy of Station Diary
Entry No. 25, dated 29th February, 1996 (Exhibit No. 28), recorded at
11.20 hrs. It, inter alia, records that as per the directions of Shri
Shekhar, the Sub-Divisional Police Officer (SDPO), Police Inspector V.
G. Raut (P.W.6), along with other officers, two Panchas and Video
Cameraman left the Police Station at Old City, Akola, District Akola, in
order to lay a raid in Khidkipura Locality, on the basis of information
that the appellant possessed and sold brown sugar at his house, after
giving intimation in writing to Panchas and Video Cameraman as well
as to the Superiors. This is the only document on which reliance has
been placed by the learned Additional Public Prosecutor to show that
Section 42 of the Narcotic Drugs and Psychotropic Substances Act was
complied with.
6. Section 42(1) of the Narcotic Drugs and Psychotropic
Substances Act, inter alia, postulates that the concerned officer, if he has
reason to believe from personal knowledge or information given by any
person and taken down in writing, that any narcotic drug, in respect of
which an offence punishable under Chapter IV has been committed, he
may enter such premises, conduct search and effect seizure and arrest
without warrant or authorisation. Section 42(2) stipulates that where an
officer takes down any information in writing under sub-section (1) or
records grounds for his belief under the proviso thereto, he shall
forthwith send a copy thereof to his immediate official superior. Section
42 has been held to be mandatory (See State of Punjab v. Balbir Singh,
(1994) 3 SCC 299 : (1994 Cri LJ 3702).
7. Turning to the facts of the present case, looking from any
angle, i.e., whether the officer concerned, for the purposes of Section
42(1) of the Narcotic Drugs and Psychotropic Substances Act, was
SDPO, Shri Shekhar, or it was Police Inspector, P.W.6 Raut, clearly
there has been total non-compliance of Section 42. It deserves to be
noticed that SDPO, Shri Shekhar was not examined as a witness by
the prosecution. Further, as already noticed, the information to
immediate official superior, namely, SP was given on telephone only.
According to P.W.6, no record of any such information was prepared
or kept, or if it was so prepared, it was not produced by the prosecution
for the reasons best known to it. Exhibit 28 though records that
intimation in writing was given to superiors, no such writing has been
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produced. This very document, in fact, notices that SDPO Shekhar
was dealing with the matter. It was at his direction that the police
party went to the residence of the appellant. He is stated to have told
P.W.6 to inform his immediate superior, namely, SP, who is said to
have been informed on telephone, as per the testimony of P.W.6, and
in writing, as per Exhibit 28, though none was produced. In fact, there
has been non-compliance both of sub-section (2) and sub-section (1)
of Section 42 of the Narcotic Drugs and Psychotropic Substances Act.
On the facts of the present case, Exhibit 28 cannot be pressed into
service to show compliance of Section 42(1) of the Narcotic Drugs and
Psychotropic Substances Act. It is only a document recording and
showing departure of the police party from the Police Station. It does
not record the reason of belief contemplated by Section 42(1) of the
Narcotic Drugs and Psychotropic Substances Act. Alternatively,
assuming that the officer to whom the information was given about
the appellant selling narcotic drug at his residence was P.W.6, in that
eventuality, he was required to record reasons to believe and was
required to send a copy thereof to the immediate official superior in
terms of Section 42(2) of the Narcotic Drugs and Psychotropic
Substances Act. In fact, P.W.6 does not even claim to be an officer to
whom such information was given. According to P.W.6, SDPO told
him that he should inform about the receipt of information to SP,
which he informed to SP on telephone. On these facts, we find no
substance in the contention of the learned Additional Public
Prosecutor that since information was given to P.W.6 by SDPO
Shekhar, on the facts and circumstances of the case, it was neither
necessary to comply with Section 42 of the Narcotic Drugs and
Psychotropic Substances Act, nor there has been substantial
compliance thereof. Section 42 of the Narcotic Drugs and
Psychotropic Substances Act is mandatory. The object of the Narcotic
Drugs And Psychotropic Substances Act is to make stringent
provisions for control and regulation of operations relating to those
drugs and substances. At the same time, to avoid harm to the innocent
persons and to avoid abuse of the provisions by the officers, certain
safeguards are provided which in the context have to be observed
strictly. Therefore, these provisions make it obligatory that such of
those officers mentioned therein, on receiving an information, should
reduce the same to writing and also record reasons for the belief while
carrying out arrest or search as provided under the proviso to Section
42(1), and to that extent, they are mandatory. Consequently, the
failure to comply with these requirements affects the prosecution case
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and, therefore, vitiates the trial. (See Balbir Singh's case (1994 Cri LJ
3702) (supra).
8. Reference may also be made to the two decisions on which
reliance has been placed by the learned counsel for the appellant. The
first of such decisions is that of Mahinder Kumar v. State, Panaji, Goa,
1999 SCC (Cri) 79 : (1995 Cri LJ 2074), where the Supreme Court held
that since the officer had, admittedly, not recorded the grounds of his
belief at any stage of the investigation subsequent to his realising that
the accused persons were in possession of Charas and did not forward a
copy of the grounds to his superior officer, as required by Section 42(2)
of the Narcotic Drugs and Psychotropic Substances Act because he had
not made any record under the proviso to Section 42(1), as such the
prosecution had to fail. The second is a Division Bench decision of this
Court in Lamin Bojang v. State of Maharashtra, 1997 Cri LJ 513,
holding that forwarding of the information under Section 42(2) of the
Narcotic Drugs and Psychotropic Substances Act was mandatory and
the written documentary information is to be forwarded to the superior
officer and not oral information and that the provisions had to be
strictly complied with, and the question whether the prejudice is caused
to the accused or not is entirely extraneous.
9. In view of our aforesaid conclusion about the non-compliance
of Section 42 of the Narcotic Drugs and Psychotropic Substances Act,
the trial of the appellant stands vitiated and consequently, the
conviction and sentence of the appellant is set aside. In this view, we
direct forthwith release of the appellant, if not wanted in some other
case. In case he has paid fine, the same shall be refunded to him.
12. The Hon'ble Supreme Court and various High Courts have
granted the concession of bail where the mandatory provisions of NDPS Act
have not been complied with even where the recovery is of commercial
quantity of contraband. Some of the judgments in this regard are
reproduced hereinbelow:-
The Hon'ble Supreme Court in Sarija Banu (A) Janarthani @
Janani & Anr. Vs. State through Inspector of Police 2004(12) SCC 266
held as under:-
" 6. The fact that such a telegram was sent and received is not
disputed. However, it is stated by the respondent that they could not
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find whereabouts of Kandasamy. It is also pertinent to note that even
though such a serious information was received by the police as per
the complainant, no case was registered and no investigation started.
From this facts, it appears that something happened on 9.7.2003 and
these are relevant factors of granting bail. We are conscious of the
stringent provisions contained in Section 37 of the NDPS Act and
we are also conscious of the fact that a charge has now been
framed against the appellants and they have to face the trial.
7. It is pertinent to note that in the bail application the
appellants, it was alleged, that there was serious violation of
Section 42 of the NDPS Act. In the impugned order nothing is
stated about the alleged violation of Section 42, and it is observed
that it was not necessary to consider such violation at this stage.
The compliance of Section 42 is mandatory and that is a relevant
fact which should have engaged attention of the Court while
considering the bail application. In the aforesaid circumstances
having regard to the special facts of the case, we direct that the
appellants 1 and 2 be released on bail on executing a bail bond for
Rs. 50,000 each with two solvent sureties for the like amount to the
satisfaction of the Special Judge, EC/NDPS, Madurai on the
following conditions:
(1) The counsel for the appellants requested that the
appellants may be allowed to stay outside the State of Tamil
Nadu. We are not inclined to grant such a prayer as the
respondents police authorities would not be able to ensure
the timely presence of the appellants in Court;
(2) The appellants shall not leave jurisdiction of the
District Court, Madurai and shall report before the Circle
Inspector, Karuppayurani Police Station once in two weeks
for 3 months, thereafter, once in a month.
(3) The appellants shall surrender their pass-port before
the Court, if not already seized by the police.
8. The Special Judge is directed to expedite the trial.
9. Whatever the Statement made regarding the merits of the case
shall not have any persuasive effect on the Special Judge while finally
deciding the case.
This Court in Gurjant Singh Vs. The State of Punjab CRM-
M-20943-2022 Decided on 20.05.2022 held as under:-
" Coming back to the facts of the present case, prima facie there
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has been violation of Section 42 of the NDPS Act. Once the mandatory
provisions of the Act has been found to be prima facie violated, the
rigors of Section 37 of the NDPS Act could be relaxed. Even
otherwise, while dealing with Section 37, the Court is not called upon
to record a finding of 'not' guilty and it is only required to say that
there are reasonable grounds to behove that the accused is not guilty
of the offence. In the present case, this belief could be gathered from
the prima facie violation of Section 42 of the NDPS Act, itself.
Further, so far as the second condition of forming an opinion that the
accused was not likely to commit an offence while on bail is
concerned, apparently, the petitioner is an accused only in the present
FIR and since he does not have any criminal antecedents, an opinion
can be expressed at this stage by the Court that he was not likely to
commit an offence while on bail."
This Court in Sarabjit Kaur Vs. State of Punjab CRM-M-
26248-2021(O&M) Decided on 30.03.2022 held as under:-
" 7. Today, the learned State Counsel, on instructions, meted to him,
by ASI Ragvinder Dhir, submits that the prosecution case is rested,
upon a prior information in respect of the premises concerned, either
hiding or concealing thereins, the narcotic drug or psychotropic
substance(s). Therefore, an imperative or peremptory statutory duty
became cast upon the IO concerned, especially, when it is also further
candidly disclosed to this Court, by the learned State Counsel, that the
relevant premises became raided in the interregnum, inter se, sunset,
and, sunrise, to obtain search warrants or authorisations from the
learned Magistrate concerned, whereupon the raid would become valid,
and, also the recovered therefrom incriminatory substance, would be
taint free. However, apparently neither the afore apposite authorisation
nor the search warrants became obtained by the police officials
concerned, from the learned Magistrate concerned.
8. Be that as it may, though it was yet open to the police officials
concerned, to proceed to validly raid the premises concerned, but yet an
imperative statutory duty became cast upon the police officials
concerned, to yet record reasons in respect of the immensity of time
being consumed, rather for the obtainings of the relevant
authorizations or search warrants, from the learned Magistrate
concerned, hence there being every likelihood of the accused fleeing
from the crime site or thereupon an opportunity for facilitating them to
conceal or hide the incriminatory narcotic drug or psychotropic
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substance(s), rather becoming afforded to them. However, even in
respect of the above imperative statutory necessity, in exception to the
necessity of search warrants, becoming obtained from the learned
Magistrate concerned, rather the learned State Counsel submits, that
the afore statutory duty has also remained uncomplied with, by the
police officials concerned.
9. In consequence, the raid, as, made upon the premises
concerned, and, also the recovery, if any, as became effected in
pursuance thereof, is prima facie, at this stage, to be concluded to be
vitiated, inasmuch as, its breaching the mandatory statutory provisions
embodied in Section 42 of the NDPS Act, provisions whereof enjoin the
meetings of strict compliances thereto.
10. Consequently, the instant petition is allowed, and, the petitioner-
bail applicant is ordered to be released from judicial custody. However,
the granting of bail to the bail applicant-petitioner, is subject to her
furnishing personal and surety bonds in the sum of Rs.50,000/- each,
before the learned trial Court/Chief Judicial Magistrate/Duty Magistrate
concerned, and, also subject to her not tampering with prosecution
evidence, and, her not influencing prosecution witnesses, and, besides
also her appearing before the trial Court concerned, as and when
directed to make her personal appearance, unless exempted for valid
reasons.
The Hon'ble Bombay High Court in Raju Bhavlal Pawar &
Ors. Vs. The State of Maharashtra 2021 ALL MR (Cri) 4651 held as
under:-
" 3. Heard Shri Bhosale h/f. Shri Sonar learned counsel for the
applicant. Shri Bhosale submits that there is total non-compliance of
Section 42 of the NDPS Act. He submits that FIR shows that no
information was recorded as required by Section 42(1) of the NDPS
Act. He further submits that taking entry in station diary entry is no
compliance of Section 42(1). There is no compliance of Section 42(2)
of the NDPS Act either. He submits that total non-compliance of
Section 42(1) and (2) is impermissible. For this purpose he placed
reliance on the case of Karnail Singh v. State of Haryana; (2009) 8
SCC 539 (Constitution Bench Judgment). He submits that CA report
is not filed. Therefore, charge-sheet is incomplete.
4. Learned APP Shri Ghayal submits that station diary entry was
recorded. Therefore, there is compliance of Section 42(1) of the NDPS
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Act. He further submits that on 28.01.2020 itself letter was written to
the Dy. S.P. in which there is reference of intimation received. This
letter bearing outward no.145/2021 is total compliance of Section
42(1) of the NDPS Act. He, therefore, submits that there is total
compliance of Section 42(1) and (2) of the NDPS Act. He further
submits that admittedly CA report was not annexed with the charge-
sheet. However, raiding party had carried field test kit with it and the
substance which was found with the applicant was tested and it was
tested as Marijuana i.e. Ganja.
5. Section 42 (1) of NDPS Act requires the person receiving the
information to record it into writing. Section 42(2) of NDPS Act
mandates that such information received by the police station has to
be forwarded to the immediate superior of the officer receiving the
information within 72 hours.
6. In the case at hand, the Police Inspector is the officer who had
received the information. Therefore, it was obligatory on his part to
record the information as mandated by Section 42(1) of the NDPS Act
and send it to his immediate official superior within a period of 72
hours from the date of its receipt.
7. So far as recording of information as required under Section
42(1) of the NDPS Act is concerned, admittedly the said information
was not recorded. It was tried to be argued that the entry was taken in
station diary and the same is sought to be treated as the information
recorded under Section 42(1) of the NDPS Act. Learned counsel Shri
Bhosale placed reliance on the case of Rajaram Kadu v. The State of
Maharashtra (Bail Application No.2108/2016) decided by this Court.
In the case of Rajaram Kadu cited (supra), this very question had
fallen for consideration before this Court. It has been held thus:
"9. ...As far as non compliance with Section 42 of the Act is
concerned, it can be seen that the information was received by
Police Naik Bhagwat Saudane. The FIR does not indicate that
he had reduced the information into writing or provided any
copy of the information to his superior officer. The statement of
API Divekar also does not indicate that he had reduced the
information into writing or forwarded the same to his superior
officer. However, the prosecution is relying upon the entries
made by Senior P.I. Sable of Ulhasnagar in the station diary to
show the compliance of Section 42. That cannot be considered
to be the compliance of Section 42 of NDPS Act. The point
which is canvassed by learned counsel for Applicant is that the
person who had received the information had not forwarded it
to the superior officer and there is nothing on record to
indicate that any such information was forwarded in writing. It
is, therefore, rightly contended that there is non compliance of
Section 42(2) of NDPS Act."
8. These observations of this Court clearly indicate that entry in
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station diary is not a compliance under Section 42 of the NDPS Act.
Therefore, there is non-compliance of Section 42 (1).
9. Learned counsel Shri Bhosale submits that delayed compliance
is permissible but total noncompliance of Section 42 is impermissible.
For this purpose he placed reliance on the case of Boota Singh and
Others v. State of Haryana (Criminal Appeal No.42 of 2021). In this
case it has been observed in para 11 as under:
"11. In Jagraj Singh alias Hansa, the facts were more or less
identical. In that case, the vehicle (as observed in para 5.3 of
the decision) was not a public transport vehicle. After
considering the relevant provisions and some of the decisions of
this Court including the decision in Karnail Singh, it was
observed:
"14. What Section 42(2) requires is that where an officer
takes down an information in writing under sub-section (1) he
shall send a copy thereof to his immediate officer senior. The
communication Ext. P-15 which was sent to the Circle Officer,
Nohar was not as per the information recorded in Ext. P- 14
and Ext. P-21. Thus, no error was committed by the High Court
in coming to the conclusion that there was breach of Section
42(2)."
10. In the case of Boota Singh cited (supra), it has been clearly
held that information has to be recorded in writing and copy of it has
to be sent to the immediate superior officer. In the case at hand
information was not recorded in writing. Therefore, question of
sending it to immediate official superior does not arise. Vide outward
no.145/21, what is done by the Investigating Officer is intimation of
information was given to the immediate official superior. Section
42(2) of NDPS Act requires copy of the information to be furnished to
the immediate official superior. Admittedly, since information was not
recorded, there is no question of forwarding copy of the said
information. Therefore, there is total non-compliance of Section 42.
11. In the case of Karnail Singh cited (supra), it is held that
delayed compliance is permissible but total non-compliance is not
permissible:
"35. In conclusion, what is to be noticed is Abdul Rashid did
not require literal compliance with the requirements of Section
42(1) and 42(2) nor did Sajan Abraham hold that the
requirements of Section 42(1) and 42(2) need not be fulfilled at
all. The effect of the two decisions was as follows :
(a) The officer on receiving the information [of the nature
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referred to in Sub-section (1) of section 42] from any person
had to record it in writing in the concerned Register and
forthwith send a copy to his immediate official superior, before
proceeding to take action in terms of clauses (a) to (d) of
section 42(1).
(b) But if the information was received when the officer was
not in the police station, but while he was on the move either on
patrol duty or otherwise, either by mobile phone, or other
means, and the information calls for immediate action and any
delay would have resulted in the goods or evidence being
removed or destroyed, it would not be feasible or practical to
take down in writing the information given to him, in such a
situation, he could take action as per clauses (a) to (d) of
section 42(1) and thereafter, as soon as it is practical, record
the information in writing and forthwith inform the same to the
official superior.
(c) In other words, the compliance with the requirements of
Sections 42(1) and 42(2) in regard to writing down the
information received and sending a copy thereof to the superior
officer, should normally precede the entry, search and seizure
by the officer. But in special circumstances involving emergent
situations, the recording of the information in writing and
sending a copy thereof to the official superior may get
postponed by a reasonable period, that is after the search, entry
and seizure. The question is one of urgency and expediency.
(d) While total non-compliance of requirements of sub-
sections (1) and (2) of Section 42 is impermissible, delayed
compliance with satisfactory explanation about the delay will
be acceptable compliance of section 42. To illustrate, if any
delay may result in the accused escaping or the goods or
evidence being destroyed or removed, not recording in writing
the information received, before initiating action, or non-
sending a copy of such information to the official superior
forthwith, may not be treated as violation of section 42. But if
the information was received when the police officer was in the
police station with sufficient time to take action, and if the
police officer fails to record in writing the information
received, or fails to send a copy thereof, to the official superior,
then it will be a suspicious circumstance being a clear violation
of section 42 of the Act. Similarly, where the police officer does
not record the information at all, and does not inform the
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official superior at all, then also it will be a clear violation of
section 42 of the Act. Whether there is adequate or substantial
compliance with section 42 or not is a question of fact to be
decided in each case. The above position got strengthened with
the amendment to section 42 by Act 9 of 2001."
12. In the case at hand there is not even a delayed compliance.
Simply a letter is forwarded to the official superior about the
information received. In this view of the matter, since there is no
compliance of Section 42(1) and (2), there is no possibility of
conviction of the accused. As held in the case of Sarija Banu (A)
Janarthani alias Janani and Another v. State through Inspector of
Police; 2004 AIR (SCW) 7488, the question of compliance can be
considered at the stage of consideration of application for bail. In
this view of the matter, the applicants are entitled to be released on
bail. Hence the following order is passed:
ORDER
I) Application is allowed.
II) Applicants be released on PR bond of Rs.50,000/- each
with one solvent surety in the like amount each, in connection with Crime No.57 of 2021 under Section 8, 20 and 22 of the N.D.P.S. Act registered with Amalner Police Station, District Jalgaon.
III) These observations are made only for the disposal of this application and the learned trial Court shall not get influenced by these observations and can come to its independent conclusion during trial.
The Hon'ble Kerala High Court in Basanth Balram Vs. Stte of Kerala 2019(2) RCR (Criminal) 488 held as under:-
" 14. The safeguards provided under the Statute is to ensure that persons are searched with a good cause and also with a view to maintain the veracity of evidence derived from such search. Very severe punishment are provided under the Act for mere possession of illicit drugs and narcotic substances. Personal search is a critical means of obtaining evidence of possession and it is, therefore, necessary that the safeguards provided in Section 50 of the Act are observed scrupulously. A procedure based on systematic and unconscionable violation of law by the official responsible for the enforcement of law cannot be considered to be a fair, just or reasonable procedure. As held by the Apex Court, the more severe 33 of 38 ::: Downloaded on - 14-06-2022 22:39:03 ::: CRM-M-25498-2021 # 34# the punishment, greater has to be the care taken to ensure that all the safeguards provided in a statute are scrupulously followed. In the case on hand, it is blatantly obvious that the statutory safeguards have been thrown to the winds by the detecting officer. The uncontrovertible materials in the form of certified copies obtained from the court below clearly show very serious aberrations in the search and detection of the contraband.
15. I am also not impressed with the contention of the learned counsel that despite the production of such materials, this Court should refrain from considering the same at this particular stage and relegate the same to be considered by the trial court. In the case on hand, it is not a question as to whether the applicants were informed of their rights or whether the search required compliance under Section 50 of the Act. The question here is with regard to the very truthfulness and sustainability of the search and seizure effected by the detecting officer on 9.10.2018.
16. As held by the Apex Court in Baldev (supra), the safeguards contained in Section 50 of the NDPS Act are intended to serve dual purpose to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. It was held that though the end result is important, but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. It was observed that the cure cannot however, be worst than the disease itself.
17. The applicants have been in custody from 9.10.2018 and when they are able to show that there are materials to suspect the very seizure and the provisions of the Act have been blatantly violated, this Court will not be justified in rejecting their submissions and in ordering them to undergo incarceration till their case is finally decided.
18. Of course, bail can be granted in a case involving commercial quantity of narcotic drugs only when it is shown that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is manifest that the conditions are cumulative and not alternative. The expression used in Section 37(1)(b)(ii) of the Act is "reasonable grounds" which expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence 34 of 38 ::: Downloaded on - 14-06-2022 22:39:03 ::: CRM-M-25498-2021 # 35# charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. For that purpose, the court is not required to consider the matter as if it is pronouncing a judgement of acquittal and recording a finding of not guilty. The court has also to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such conclusion. [See Shiv Shanker Kesari (supra)].
19. In the instant case, when the inbuilt safeguards are violated with impunity and when the mandatory formalities are breached, it would result in travesty of justice to leave the question of their compliance to be looked into only at the stage of trial. I am of the view that it would result in failure of justice to force the applicants to be in custody till the trial is complete. The court's satisfaction within the meaning of sub-section 1(b)(ii) of Section 37 of the NDPS Act that there are reasonable grounds for believing that the accused is not guilty of such offence, is not recording of a finding that the accused is not guilty within the meaning of section 235 of the Cr.P.C., 1973 Such a finding of guilty or not guilty can only be rendered after conclusion of the trial whereas the satisfaction that there are reasonable grounds for believing that the accused is not guilty as to be arrived at before the conclusion of trial, i.e., at any stage of investigation or in the course of trial itself. This Court cannot abdicate from its responsibilities by postponing the consideration of the fact whether reasonable grounds exist for believing that the accused is not guilty till the actual trial is concluded. In other words, if materials are shown to exist on the basis of which the court can feel satisfied that there are reasonable grounds for believing that the accused is not guilty, the court will not be justified in taking an alternative course other than recording its necessary satisfaction.
20. Now the question is whether this Court will be justified in holding that the applicants herein are not likely to commit any offence while on bail. The prosecution has no case that the applicants are persons with criminal antecedents or that they are 35 of 38 ::: Downloaded on - 14-06-2022 22:39:03 ::: CRM-M-25498-2021 # 36# involved in similar offence earlier.
21. Since I am prima facie satisfied that the seizure has been effected in contravention of mandatory provisions of Section 50 and as the contention of the applicants that a false case has been foisted by the detecting officer cannot be totally brushed aside, for the limited purpose of consideration of this application, it is held that this court is satisfied that there are reasonable grounds for believing that the applicants are not guilty of such offence and that they are not likely to commit any offence while on bail. I also take into consideration the period of detention undergone, the stage of investigation and the reasonable possibility of securing the presence of the applicants at the time of trial. Having considered all the relevant aspects, I am of the view that the applicants can be enlarged on bail on stringent conditions. Before concluding, it is made clear that these prima facie observations are made for the limited purpose of deciding this bail application and any opinion expressed above shall not be regarded as an opinion on merits during trial.
In the result, this application will stand allowed. The applicants shall be released on bail on their executing a bond for Rs.2,00,000/- (Rupees Two lakh only) each with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction. The above order shall be subject to the following conditions:
1) The applicant shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11 a.m., for three months or till final report is filed, whichever is earlier.
2) They shall not intimidate or attempt to influence the witnesses; nor shall they tamper with the evidence.
3) They shall not commit any offence while they are on bail.
4) The applicants shall not leave India without the permission of the Court and if having passport, shall deposit the same before the Trial Court within a week; If release of the passport is required at a later period, the applicants shall be at liberty to move appropriate application before the Court having jurisdiction.
In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law.
This Court in Sudesh Singh @ Tandu Vs. State of Punjab 2011(9) RCR (Criminal) 922 held as under:-
36 of 38 ::: Downloaded on - 14-06-2022 22:39:03 ::: CRM-M-25498-2021 # 37# " This petition has been filed under Section 439 Cr.P.C. for grant of regular bail to the petitioner in case F.I.R. No.26 dated 20.03.2011 registered under sections 22, 61 and 85 of the NDPS Act at P.S. Boha, District Mansa.
2. At the very outset, learned counsel for the petitioner states that in the last order inadvertently it has been wrongly recorded that the petitioner is in custody for the last six months but actually the petitioner is in custody for the last four months and prays that the same may be read as four months. Allowed as prayed for. On 19.09.2011 the following contention was noticed:-
"Learned counsel has argued that as per the allegations of the FIR, NDPS Act has been wrongly invoked. However, without prejudice to this argument it is argued that the mandatory provisions of Section 50 of the Act having admittedly not been followed, the petitioner, who has now been in custody for six months for an alleged recovery of 50 bottles of Racscof and 300 pactets of Diatil tablets), would be entitled to bail."
3. In support thereof learned counsel for the petitioner has relied upon the judgment in the matter of Sarija Banu @ Janarthani @ Janani and another v. State through Inspector of Police reported in (2004) 12 SCC 266 wherein the Hon'ble Supreme Court has held that the violation of mandatory provisions is a relevant consideration even at the time of bail. He has also relied upon the judgment in the matter of Mohan Singh v. State of Punjab reported in 2005(1) P.L.R. 425 wherein the Full Bench of this Court has held that Section 50 is a mandatory provision.
4. Learned Deputy Advocate General has accepted the fact that as per the FIR the mandatory provision of Section 50 has not been complied with. He is also not in a position to cite any contrary judgment. To the averment that there is no other case pending against the petitioner, learned Deputy Advocate General on instructions from ASI Didar Singh has stated that there is no other case pending against him.
5. In the circumstances, without going into the merits of the case, I deem it appropriate to release the petitioner on regular bail to the satisfaction of the trial Court/Duty Magistrate.
6. Ordered accordingly.
7. Petition stands disposed of.
13. A perusal of Section 42 of the NDPS Act along with various judgments on the issue would show that while delayed compliance was acceptable, however, where there was a total non compliance of Section 42 37 of 38 ::: Downloaded on - 14-06-2022 22:39:03 ::: CRM-M-25498-2021 # 38# as appears to be the case herein, the accused ought to be granted the concession of regular bail.
14. In view of the above, a prima facie satisfaction can be recorded under Section 37 of the NDPS Act that there are reasonable grounds to believe that the petitioner is not guilty of the offence and was not likely to commit any offence while on bail as he has clean antecedents.
15. Hence without commenting on the merits of the case, the present petition is allowed and the petitioner Pankaj son of Sh. Ranbir Singh is ordered to be released on bail subject to the satisfaction of learned CJM/Duty Magistrate, concerned.
16. The petitioner shall appear before the police station concerned on the first Monday of every month till the conclusion of the trial and inform in writing each time that he is not involved in any other crime other than the present case.
17. If the petitioner commits a similar offence for which he is currently charged while on bail, the State would be at liberty to move an application for cancellation of bail.
18. The observations made herein are only for the purposes of deciding this bail application and the trial Court shall adjudicate upon the matter uninfluenced by any such observations made.
Petition stands disposed of.
( JASJIT SINGH BEDI )
JUDGE
June 14, 2022
Vinay
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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