Non-Compliance Of Section 41 Is Not A Ground For Granting Bail, Rigours Of Section 37 Still Has To Be Met: Delhi High Uplifts The Provisions Of The NDPS Act

CAUSE TITLE:
Hardeep Singh Vs. The State.

DATE OF ORDER:
18 November 2022.

JUDGE(S):
Hon’ble Mr. Justice Jasmeet Singh.

PARTIES:
Petitioner: Hardeep Singh.
Respondent: The State.

SUBJECT

This is an application seeking grant of bail to the applicant/ accused under Section 15,25,29,61 and 85 of the NDPS Act, registered at Tilak Nagar police station.

IMPORTANT PROVISIONS

The Narcotic Drugs and Psychotropic Substances Act, 1985-

• Section 41- Power to issue warrant and authorization.
• Section 42- Power to “entry, search, seizure or arrest”.
• Section 43- Power to seizure and arrest in public place.
• Section 50- Power to get searched in the presence of a Magistrate or a Gazetted Officer.

BRIEF FACTS

• The accused applicant (Hardeep Singh) along with his brother i.e co-accused Harjeet was found in possession of illicit drug “Doda-Post” i.e poppy straw. Both the people were found unloading katta from their car i10. Three kattas were recovered with a total weight of 58.5 kgs.
• The accused and his brother were caught hold by SI Vikas Sahu, HC Sandeep and Constable Manoj around 7.15 a.m. while they were patrolling the area.
• The police personnel interrogated the boys and stated that the katta in their car contained ‘Doda-Post’. The SI further asked from the accused persons about any license or any other document for the authorization of the same. But they did not have any.
• Following that, the SI telephonically informed the Inspector who gave orders to take appropriate action. Thereafter, he served a notice to the accused under Section 50 of the NDPS Act.

QUESTIONS RAISED

• Whether there is any case of Chance Recovery in the present case and if not whether there has been non-compliance of Section 41(2) of NDPS Act?
• Whether there was any non-compliance of Section 50?
• Whether the said non- compliance will entitle the applicant for grant of bail?
• Whether there was compliance of Section 41?

ARGUMENTS ADVANCED BY THE APPELLANT

• The petitioner argued that in the present case, the Inspector was not a Gazetted Officer nor a competent authority to grant authorization as per Section 41 of the NDPS Act.
• It was also noted that neither the ACP (the Gazetted Officer) nor the Magistrate ever authorized such officer for the purpose of search, seizure or arrest or investigate under Section 41 of the NDPS Act.
• Further, the petitioner counsel brought into notice that the SI should have informed the Inspector and the ACP prior to opening of the Katta and the process of seach and seizure should have been followed only after the due authorization under Section 41,42 or 43 of the NDPS Act.
• It was also complained that the applicant himself wanted to get searched before a Gazetted Officer or a Magistrate as per notice under Section 50 of the NDPS Act. The applicant said, “main police staff ki talashinahilenachahta. Apnitalaashikisirajpatrit Adhikari kesamnekarwaanachahtahoon”.
• The learned counsel for the applicant further stated that the object of Section 50 is to check the misuse of power and failure to comply with its provision would vitiate the trial and would render the recovery of contraband otiose. This statement was supported by the following judgements-

1. Arif Khan @ Agha Khan v. The State of Uttarakhand(Criminal Appeal No. 273/2007).
2. Dharambir v. State (1979 AIR 1595).
3. Vijaysinh Chandubha Jadeja v. State of Gujarat (Criminal Appeal No. 943/2005).

• Based on these grounds, the petitioner of the applicant has urged for the bail application.

ARGUMENTS ADVANCED BY THE RESPONDENT

• The learned APP, Mr. Gahalot has mentioned that this was a case of “Chance Recovery”.
• To support the above statement the respondent counsel said that the recovery in the present case came to be made after the applicant and his brother were acting in a wary and suspicious manner on seeing the patrolling team.
• The provisions of Section 41 of the NDPS Act would not apply as the element of “reason to believe or prior information” was missing in the facts of the present case. The patrolling team did not have any prior knowledge or information.
• With respect to Section 42 of the NDPS Act, the respondent counsel submits that the provisions of that particular section does not use the words, “officers of Gazetted rank”. It includes all the officers who are above the rank of the peon, sepoy or a constable. The argument stated by the petitioner’s counsel that only a Gazetted Officer could effectuate seizure is contrary to the provisions of the scheme.
• The prosecution has relied on the following judgements-

1. State of Himachal Pradesh v. Sunil Kumar [(2014) 4 SCC 780].
2. Sanjay Kumar v. State of Himachal Pradesh [Cr. MP (M) No. 1392/2020].

ANANLYSIS BY THE COURT

• It was quite clear from the FIR and the chargesheet that only “on enquiry” from the accused persons, the patrolling team came to know that the katta were having “Doda-Post”.
• After this information, the other kattas were opened and checked which allegedly contained “Doda-Post”.
• By further interrogation, the accused disclosed the fact that they order this illicit drug from Chittorgarh, Rajasthan (rukka).
• The Court opined that the moment such enquiry was conducted by the SI, the case pivoted from “no prior knowledge or information” to “reason to believe from personal knowledge or information given by any person”. The question of chance, or by accident or unexpectedly disappears as soon as the SI was informed about the substance.
• Further the Court states that the judgements relied by the prosecution has no relevance in the present case.
• In the present case, the katta was opened and sealed by a non-authorized and a non-gazetted officer. Therefore, it appeared that prima facie, there was non-compliance of Section 41.
• The Court stated that bail cannot be granted to the applicant just for the violation of Section 41 of the NDPS Act alone. It relied on the judgements given by the Supreme Court in the case of State of Punjab v. Balbir Singh [(1994) 3 SCC 299].
• The Court also stated that the authorities cannot ignore the statutory provisions of the sections especially when it causes serious prejudice to the present applicant.
• Asserting the Supreme Court judgement given in Karnail Singh v. State of Haryana [(2009) 8 SCC 539], this Court enforced the fact that Section 41 is discretionary measure and the non-compliance of this section cannot have any bearing on granting bail.
• The Court also mentioned that the provisions of Section 50 does not extend to the recovery made from the car. It thereby stated on the following judgements-

1. State of H.P. v. Pawan Kumar [(2005) 4 SCC 350].
2. Kallu Khan v. State of Rajasthan (Criminal Appeal No. 1605/2021).

• Therefore, it was said that the provisions of Section 50 was duly complied in the present case as the ACP was present while personal search of the applicant.
• It is very evident from the facts of the case that it involves commercial quantity of the narcotics drugs. Hence, the provisions of Section 37 has to be met even if there is non-compliance of Section 41.
• The Court did not believed on the fact that the applicants are not guilty of such offence and they are not likely to commit any such offence on bail. Hence, it dismissed this bail application relying on the Supreme Court judgement given in the case of State of Kerala v. Rajesh [(2020) 12 SCC 122].

CONCLUSION

The present case proved that irresponsibility of a police officer will never dilute a crime. A crime will stay a crime and a criminal will be always be guilty for it. One cannot escape from their crime by questioning the authority of the official who catches you doing the same. The case also uplifts the provisions of the NDPS Act very strictly and even mentions the same for the police officials. This shows that nobody can escape from the eyes of law. Law is equal for all and it does not differentiates between a common man and a public servant. Nobody is privileged or demeaned in a Court and everybody is equally and individually punishable for their mistakes or disobedience of law.

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