- The High Court of Delhi in answering the question as to whether non-compliance with Section 41 of Narcotic Drugs and Psychotropic Substances Act, 1985 during the process of arrest, search and seizure impairs the process of trial, is to be seen at the trial stage and does not have any bearing during grant of trial.
- The authorities though cannot ignore the statutory rigors of the provisions in the act especially when it results in prejudice to the accused, the Supreme Court in the case of Karnail Singh Vs State of Haryana decided that Section 41 is only a directory measure.
- In a 2009 ruling, the Supreme Court held that the provisions are to be taken as discretionary to check on the misuse of the act rather than letting the hardened drug peddlers escape.
- Justice Jasmeet Singh noted that non-compliance with Section 41 of NDPS Act will not absolve the accused under Section 37 which imposes strict conditions on the grant of bail.
- He added, "There is a bar imposed by Section 37 which cannot be ignored or superceded by a prima facie non-compliance of the discretionary provision i.e., Section 41.”
- The court denied bail to Hardeep Singh who was booked by Tilak Nagar police in January 2020, for offences under Sections 15, 25, 29, 61, and 85 of NDPS Act.
- Hardeep Singh and his brother were found in possession of 58.5kgs of Doda’s post and the case was regarding non-compliance with Section 41.
- The counsel representing on behalf of the accused argued that Singh and his brother were found by police during patrolling.
- After checking the bag containing contraband materials and SI informing the Inspector telephonically who gave orders for action, the SI served a notice to the accused under Section 50 of the act.
- The counsel contended that Inspector is neither a gazetted officer nor a competent authority to grant authorization under Section 41. It was further argued that the SI should have informed the Inspector and ACP before the opening of Katta and only after due authorization should the process of search and seizure be proceeded.
- There was also an alleged irregularity in issuing notice under Section 50 of the act as the officer who served it was not an authorized person under Section 41, 42, or 43.
- The court held that though there was non-compliance with Section 41 prima facie it shall not affect the granting of bail.
- The court also observed that Section 50 provides conditions under which a search has to be done and when such search shall not extend to recovery made from the car.
- The argument placed forth was that Section 50 was duly adhered to and the charge sheet stated that the search was conducted in the presence of ACP.
- The court based on this contention held that Section 37 needs to be fulfilled by the applicant as mandatory Section 50 was complied with.
- Even if it is assumed that non-compliance with Section 41 will vitiate the trial, the rigors of Section 37 have complied, as the present case involves the recovery of a commercial quantity of narcotic drugs amounting upto 58.5 kgs.
- Court denied bail to the accused and said there is no reasonable ground to believe that applicants are not guilty of the offences or are not likely to commit any offence on bail.
- On 18.11.2022, the court in the development of the case granted bail to the accused and said that recovery made without complying with Section 50 cannot be sustained and no reliance can be placed upon it.
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