In CRM-M-25498-2021-PUNJ HC- Delayed compliance of Sec.42 of NDPS Act is acceptable but accused ought to be granted concession of regular bail where there is total non-compliance of said provision: P&H HC Justice Jasjit Singh Bedi [14-06-2022]

Read Order: Pankaj v. State of Punjab

Monika Rahar

Chandigarh, June 14, 2022: While dealing with a bail plea in a matter pertaining to the Narcotic Drugs and Psychotropic Substances Act, 1985 wherein the petitioner claimed violation of the provisions of Section 42, the Punjab and Haryana High Court has held that a perusal of Section 42 along with various judgments on the issue would show that while delayed compliance with provisions of Section 42 is acceptable, however, the accused ought to be granted the concession of regular bail where there was a total non-compliance of the said provision.

From a perusal of a plethora of decisions of both the Apex Court and various High Courts, the Bench of Justice Jasjit Singh Bedi further added,, “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.”

The Prayer in this petition under Section 439 Cr.P.C. was for the grant of regular bail in respect of an FIR registered under Sections 22, 25, 27-A and 29 of NDPS Act.  In the instant case, a secret informer informed ASI Kashmir Singh that the petitioner-accused, who was habitual of selling intoxicating tablets, was carrying contraband (tablets) in his Activa Scooter for the purpose of selling the same to his customers. Finding the information to be credible, a ruqa was sent to the police station concerned for registering the FIR against the petitioner.

Consequently, a check post was installed and the police party noticed a person riding a white Activa carrying the same number plate, the mention of which was made by the informer. On being asked to stop, the rider tried to take a U turn, and in this process his scooter slipped and a bag carrying those tables fell on the road. The petitioner was apprehended and 2000 strips, each strip containing 10 tablets i.e. 20,000 intoxicating tablets of Tramadol Hydrochloride labelled as Radol-100 were recovered.

During the interrogation, the petitioner disclosed that the intoxicating tablets were supplied to him by Surinder Singh @ Shelly 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.

It was the case of the petitioner’s counsel that the search and seizure was completely vitiated as Section 42 of the NDPS Act was violated. The Counsel added that no communication of the secret information received was sent to the superior officer within 72 hours and no reasons were recorded as to why warrants/authorization could not be obtained prior to conducting the raid/setting up of a naka after sunset. 

The Counsel further submitted that the police party was travelling in a private vehicle and the details of the ownership of the said vehicle was not 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. 

It was further the case of the Counsel that the petitioner was a first time offender and in custody since November 2020. Also, it was stated that none of the 23 prosecution witnesses were examined and thus the delayed trial itself entitled the petitioner to the grant of bail more so when his co-accused were granted the same concession.

On the contrary, the State Counsel contended 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.  Further, it was contended that even otherwise there was substantial compliance of Section 42 of the NDPS Act. Thus, while submitting that heavy recovery of the contraband was effected from the petitioner, the Counsel argued that the petitioner was not entitled to the grant of bail.

After taking into consideration these rival submissions and referring to a plethora of decisions of the Top Court, the Court observed at the very outset that the 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.

Further, on the aspect of the alleged violation of Section 42 of the NDPS Act, the Court opined, on a perusal of the provisions of the said section and after taking into consideration various judgments on the issue, that while delayed compliance of Section 42 was acceptable, however, where there was a total non- compliance of the said section (as was the situation in the instant case), the accused ought to be granted the concession of regular bail.

In view of the above the Court held that a prima facie satisfaction can be recorded under Section 37 of the NDPS Act that  in the case at hand, there existed reasonable grounds to believe that the petitioner was not guilty of the offence and was not likely to commit any offence while on bail as he had clean antecedents. 

Thus, while allowing the petition, the Court held, “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… 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.”