Case title:
Abdul Rakib Vs The State of West Bengal
Date of Order:
25th August 2023
Bench:
Hon’ble Justice Moushumi Bhattacharya
&
Hon’ble Justice Prasenjit Biswas.
Parties:
Petitioner: Abdul Rakib
Respondent: The State of West Bengal
SUBJECT
- The application is filed under Section 439 of The Code of Criminal Procedure, 1973, in connection with FIR No. 966 of 2022, registered at P.S. New Jalpaiguri.
- The court’s decision, along with High Court rulings, overturned Section 37 of the NDPS Act, granting bail request due to non-compliance with Section 42(1) and (2).
IMPORTANT PROVISIONS
The Narcotic Drugs and Psychotropic Substances Act, 1985
- Section 43
The Code of Criminal Procedure, 1973
- Section 439
OVERVIEW
- The current request is being made in accordance with Section 439 of The Code of Criminal Procedure, 1973, in relation to FIR No. 966 of 2022, which was filed on August 28, 2022, and was filed at P.S. New Jalpaiguri in accordance with Sections 22(c)/25/28/29 of the N.D.P.S. Act, 1985.
ISSUES RAISED
- Whether the vehicle from which the alleged narcotic substance was seized was public or private. The clarification is crucial since Section 42(1) and (2) apply only if the vehicle is not a public conveyance ?
- It is thus necessary to determine whether the conveyance from which the narcotic drug was purportedly seized is within “public place” and, more particularly, “public conveyance.” ?
ARGUMENTS ADVANCED BY THE APPELLANT
- The petitioner, through counsel, defends not being the driver, owner, or co-passenger of the truck and argues against violating Section 42 of the NDPS Act, 1985 and Standing Instructions 1/88 for uniform sampling.
ARGUMENTS ADVANCED BY THE RESPONDENT
- The prosecution has alleged that a substantial quantity of Yaba tablets was recovered from a truck.
- Legal counsel representing the prosecution has stated that neither Section 42(1) nor (2) of the Act have been violated, and that the Standing Order has also been followed.
- In order to demonstrate compliance with Section 52A of the NDPS Act and that there hasn’t been any delay in submitting the samples to the Judicial Magistrate, counsel depends on the Case Diary.
JUDGEMENT ANALYSIS
- The State Transport Department’s vehicle particulars reveal it as a goods service vehicle, owned by Samad Sk., and not intended for public use or transit, as per the court’s filings.
- The Supreme Court ruled in Boota Singh v. State of Haryana that a private vehicle was not a public conveyance, based on the vehicle’s registration certificate and the Explanation to Section 43 of the NDPS Act, and the relevant State of Rajasthan vs. Jag Raj Singh case.
- The prosecution claims secret information was recorded through a General Diary Entry by the Special Task Force, which was later communicated to a superior officer. However, the court argues that this entry does not constitute compliance under Section 42(1) of the NDPS Act, as the Bombay High Court ruled in Raju BhavlalPawar and Ors.
- The prosecution relied on the Case Diary to prove compliance with Section 42(2) of the NDPS Act. However, the Supreme Court in Mahabir Singh vs. State of Haryana (2001) ruled that court entries cannot be used as evidence against the accused and can only be used for contradicting a police officer under Section 145 of the Evidence Act.
CONCLUSION
- The court’s opinion on non-compliance with Section 42(1) and (2) of the Act, as well as rulings from various High Courts, overturn the statutory restriction imposed by Section 37 of the NDPS Act, granting the bail request.
