Full Judgment Text
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 23.08.2022
Pronounced on: 18.11.2022
+ BAIL APPLN. 3582/2021
HARDEEP SINGH ..... Petitioner
Through: Ms Sushma Sharma, Mr Girish
Kumar Sharma, Mr Karan Verma and
Ms Aayushi Gaur, Advs.
versus
THE STATE ..... Respondent
Through: Mr. Pradeep Gahalot, APP for State
ASI Charan Singh, PS Tilak Nagar
CORAM:
HON'BLE MR. JUSTICE JASMEET SINGH
J U D G M E N T
: JASMEET SINGH, J
1. This is an application seeking grant of bail to the applicant/accused in
FIR No. 06/2020 dated 04.01.2020, under Sections 15/25/29/61/85 NDPS
Act, registered at Police Station-Tilak Nagar.
2. It is stated that the applicant-accused was found in possession of illicit
drug „Doda-Post‟ which was recovered by SI Vikas Sahu, HC Sandeep and
Constable Manoj while they were patrolling the area. The applicant along
with his brother i.e. co-accused Harjeet was found unloading katta from car
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bearing No. DL-4CND-8817 make i10. The total recovery of the substance
was 58.5 kgs allegedly found in three kattas weighing 17.5 kgs, 22 kgs and
19 kgs respectively. It has been stated by Ms Sushma Sharma, learned
counsel for Applicant, that in the present case there is non-compliance of
mandatory provisions of Section 41 of the NDPS Act. She states that as per
the respondent‟s case, the applicant and his brother were found at the time of
patrolling around 07:15 a.m. The police personnel stopped the boys and on
interrogation stated that the katta contained „Doda-Post‟ i.e. poppy straw.
The katta was checked and the SI informed the Inspector telephonically who
gave orders for taking appropriate action. It was the SI who served the
applicant and his brother with a notice under Section 50 of the NDPS Act.
3. It is argued that in the present case, the Inspector is not a Gazetted
Officer nor the authority competent to grant authorization as per Section 41
of the NDPS Act. The ACP i.e., the Gazetted Officer nor the Magistrate
under Section 41 of the NDPS Act ever authorized any officer for the
purpose of search, seizure or arrest or investigate in the present case. It is
further stated that the SI should have informed the Inspector and the ACP
prior to opening of the Katta and only after due authorization, the process of
search and seizure had to be followed.
4. It is also argued that there is an irregularity/illegality while issuing
notice under Section 50 of the NDPS Act. The notice served to the applicant
and his brother is illegal as the officer serving it was not authorized as per
Sections 41, 42 or 43 of the NDPS Act. The applicant himself wanted to get
searched before a Gazetted Officer or a Magistrate as per the notice under
Section 50 of the NDPS Act where it is written „ main police staff ki talashi
nahi lena chahta. Apni talaashi kisi rajpatrit Adhikari ke samne karwaana
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chahta hoon’.
5. It is further argued that the object of Section 50 is to check misuse of
power and, failure to comply with the provisions of Section 50 would render
the recovery of contraband otiose and vitiate the trial. Learned counsel for
the applicant has relied upon the following judgments:
Arif Khan @ Agha Khan vs The State Of Uttarakhand on 27
April, 2018 Supreme Court of India’
The Hon’ble Delhi High Court judgement, titled as ‘Dharambir
v/s State, 13 November, 2018’
VijaysinhChandubha Jadeja vs State Of Gujarat on 29 October,
2010
6. These are primarily the grounds on which the applicant has argued the
bail application.
7. Per contra, Mr Gahalot, learned APP has stated that the present case is
a case of chance recovery. He states that the recovery in the present case
came to be made after the applicant and his brother were acting in a
suspicious and wary manner on seeing the patrolling team. He states that the
patrolling team did not have any prior knowledge or information as
contemplated under Section 41 or 42 of the Act. He further states that in the
present case there is no applicability of Section 41 of the NDPS Act as in the
facts of the present case “reason to believe or prior information ” as
envisaged under Section 41 of the NDPS Act were missing. There was no
prior information or reason to believe in the present case and hence the
rigours of Section 41 of the NDPS Act would not apply.
8. As regards Section 50 is concerned, it is stated that the provisions of
Section 50 of the Act were duly complied with as personal search of the
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applicant was conducted in the presence of the ACP. Lastly, he submits that
Section 42 does not use the words “ officers of Gazetted rank”. It covers all
officers above the rank of peon, sepoy or a constable and the argument that
only a Gazetted Officer could effectuate seizure is contrary to the provisions
of the scheme.
9. I have heard Ms Sushma Sharma, learned counsel for the applicant
and Mr. Pradeep Gahalot, learned APP for the State.
10. The prosecution had placed on record the following judgements:
i. State of Himachal Pradesh vs Sunil Kumar (2014) 4
Supreme Court Cases780.
ii. Sanjay Kumar vs State of H.P., High Court of Himachal
Pradesh, Shimla Cr. MP(M) No. 1392 of 2020
11. In the present case, the questions which arises for my consideration
are that,
a) Whether the present case is the case of Chance Recovery and if not
whether there has been non-compliance of section 41(2) of NDPS
Act?
b) Whether there was non-compliance of section 50?
c) Whether the said non-compliance will entitle the applicant for grant of
bail?
12. In the present case, the prosecution has relied on the fact that the said
recovery was a chance recovery. The Hon‟ble Supreme Court in State of
Himachal Pradesh Versus Sunil Kumar (2014) 4 SCC 780 held that “The
expression "chance recovery" has not been defined anywhere and its plain
and simple meaning seems to be a recovery made by chance or by accident
or unexpectedly.”
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13. Hence, to examine whether in the present case there was a chance
recovery or not, I will have to examine whether the same was by accident or
did the officials had “reason to believe from personal knowledge or prior
information given by any person.”
14. In the present case, the FIR states as under:
“ That on questioning about the stuff inside the three kattas,
it was stated that thethree kattas contained doda post (chura
post). Similarly, the chargesheet mentions “That on questioning
about the stuff inside the three kattas, it was stated that the three
kattas contained doda post (chura post ).”
15. From the above, it is quite clear that the SI while he was on the
patrolling duty saw the accused persons, including the applicant while
unloading the kattas from the i10 car. The officials acted because, the
accused persons acted in suspicious and wary manner on sighting the
patrolling team. The officials approached the accused person and came
across Katta . It is the case of the prosecution itself as it is mentioned in the
FIR as well as in the chargesheet that on enquiry from the accused persons
the patrolling team came to know that the katta were having doda post .
16. After this information, the katta was opened and checked, it allegedly
contained doda post . Further, the other kattas kept in the car were checked
which allegedly had the doda post . The applicant along with co-accused
were interrogated and they allegedly disclosed that they order poppy straw
from Chittorgarh, Rajasthan. (rukka). Further, the SI asked from the accused
persons about any license or any other document for the same, which they
did not have. Following that, the SI informed the Inspector telephonically
who gave orders to take appropriate action. The SI served the accused with a
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notice u/s 50 NDPS act, thereafter.
17. I am the opinion, the moment such enquiry was conducted, the case
pivots from no prior knowledge or prior information to reason to believe
from personal knowledge or information given by any person.” In the latter
case, the gazetted officer is required to issue authorisation. Hence the
gazetted officer was required to issue authorisation. The moment the SI was
informed about the substance, the question of chance, or by accident or
unexpectedly, disappears.
18. The judgments relied by the prosecution are of no help to the
Prosecution. In State of Himachal Pradesh vs Sunil Kumar(supra) that was
the case of chance recovery because in that case the police officers were
looking for passengers who were travelling ticketless on the bus. They
accidentally or unexpectedly came across drugs carried by a passenger and
in the above said judgement it was held as a recovery by chance since, they
were not looking for drugs nor expecting to find drugs carried by anybody.
In the present case, the police officials came to know on enquiry from the
accused persons that there is a doda post in the katta hence, it is not the case
of chance recovery as before search and seizure, they came to know about
the presence of contraband in katta. Hence, facts of the present case are
different from the Sunil Kumar (supra) and hence distinguishable.
19. In Sanjay Kumar vs State of H.P ., also has no relevance in the present
case as these judgement deals with the section 42(2) of the NDPS Act
whereas the case of the present petitioner falls under the purview of 41(2) of
NDPS Act because the police officials had the prior information/knowledge
about the presence of the doda post in the katta.
20. This brings me to the second question-Whether there is compliance of
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section 41?
21. For consideration, Section 41 is reproduced as under:
41. Power to issue warrant and authorisation. -- (l) A
Metropolitan Magistrate or a Magistrate of the first class or any
Magistrate of the second class specially empowered by the State
Government in this behalf, may issue a warrant for the arrest of
any person whom he has reason to believe to have committed any
offence punishable under this Act, or for the search, whether by
day or by night, of any building, conveyance or place in which he
has reason to believe 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:
(2) Any such officer of gazetted rank of the departments of
central excise, narcotics, customs, revenue intelligence or any
other department of the Central Government including the para-
military forces or the armed forces as is empowered in this
behalf by general or special order by the Central Government, or
any such officer 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
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given by any person and taken in writing that any person has
committed an offence punishable under this Act or that any
narcotic drug or psychotropic substance or controlled substance
in respect of which any offence 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
place, may authorise any officer subordinate to him but superior
in rank to a peon, sepoy or a constable to arrest such a person or
search a building, conveyance or place whether by day or by
night or himself arrest such a person or search a building,
conveyance or place.
(3) The officer to whom a warrant under sub-section (1) is
addressed and the officer who authorised the arrest or search or
the officer who is so authorised under sub-section (2) shall have
all the powers of an officer acting under section 42.]
22. As per the above section, it is only the ACP being the empowered
officer who has the power to authorize any officer subordinate to him but
superior in rank of peon/sepoy or a constable to search and seize of the
drugs and arrest the accused persons. However, in the present case the police
officials even after coming to know about the contraband i.e., doda post,
proceeded to open the katta, weighed and sealed the same and the SHO
counter sealed the above said kattas.
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23. The Inspector is not a Gazetted Officer i.e., not the authority to grant
authorization as per the provisions of Section 41 NDPS act. Neither the ACP
i.e., the Gazetted Officer nor any Magistrate as per the scope of Section 41
ever authorized any officer for the purpose of search, seizure and arrest in
the present case in accordance with the secret information as allegedly
given.
24. Hence it appears that prima facie, there is non-compliance of section
41.
25. But the other question before me is whether the prima facie non
compliance of Section 41 of NDPS Act entitle the applicant for bail?
26. I am of the opinion that the applicant cannot be granted bail for
violation of section 41 of NDPS act alone.
A. Section 41 is discretionary
27. The Supreme Court in State of Punjab vs Balbir Singh, 1994 (3) SCC
299 has stated that:
“24. …In that context while determining whether the provisions
of the Act to be followed after the arrest or search are directory
or mandatory, it will have to be kept in mind that the provisions
of a statute creating public duties are generally speaking
directory. The provisions of these two sections contain certain
procedural instructions for strict compliance by the officers. But
if there is no strict compliance of any of these instructions that by
itself cannot render the acts done by these officers null and void
and at the most it may affect the probative value of the evidence
regarding arrest or search and in some cases it may invalidate
such arrest or search. But such violation by itself does not
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invalidate the trial or the conviction if otherwise there is
sufficient material. Therefore it has to be shown that such non-
compliance has caused prejudice and resulted in failure of
justice. The officers, however, cannot totally ignore these
provisions and if there is no proper explanation for non-
compliance or where the officers totally ignore the provisions
then that will definitely have an adverse effect on the prosecution
case and the courts have to appreciate the evidence and the
merits of the case bearing these aspects in view. However, a
mere non-compliance or failure to strictly comply by itself will
not vitiate the prosecution.
25. The questions 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
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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
authorized 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…”
28. From the above it is clear that there should have been compliance of
the mandatory provisions. The authorities cannot ignore statutory rigours of
the sections especially when it causes serious prejudice to the present
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applicant-accused.
29. However in Karnail Singh v. State of Haryana , (2009) 8 SCC 539,
the Supreme Court had while examining whether the statutory provision
under Sections 41(2) and 42(2) of the Act of writing down the
information,isto be interpreted as a mandatory provision stated that:
“34. …As a result, if the statutory provision under Sections 41(2)
and 42(2) of the Act of writing down the information is
interpreted as a mandatory provision, it will disable the haste of
an emergency situation and may turn out to be in vain with
regard to the criminal search and seizure. These provisions
should not be misused by the wrongdoers/offenders as a major
ground for acquittal. Consequently, these provisions should be
taken as a discretionary measure which should check the
misuse of the Act rather than providing an escape to the
hardened drug peddlers .”
Emphasis supplied
30. Karnail Singh (supra) , clearly states that the provision of section 41 is
discretionary measure. Moreover, the question of whether the non-
compliance of section 41 vitiates the trial is to be seen the stage of trial and
cannot have any bearing on granting bail.
B. Mandatory provision of section 50 complied with
31. As regards non-compliance of section 50 is considered, the provisions
of Section 50 do not extend to the recovery made from the car. The Hon‟ble
Supreme Court in State of H. P. Versus Pawan Kumar(2005) 4 SCC 350
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considered the question, on difference of opinion between two Hon‟ble
judges, whether and after discussing the dictum of the Constitution Bench
Judgement in State of Punjab Versus Baldev Singh, held as under:
“14. The above quoted dictum of the Constitution Bench shows
that the provisions of Section 50 will come into play only in the
case of personal search of the accused and not of some baggage
like a bag, article or container, etc. which he may be carrying.”
32. The Hon‟ble Supreme Court in Kallu Khan v. State of Rajasthan in
Criminal Appeal No. 1605/2021 also held as under:
“15. Simultaneously, the arguments advanced by the appellant
regarding non-compliance of Section 50 of NDPS Act is bereft of
any merit because no recovery of contraband from the person of
the accused has been made to which compliance of the provision
of Section 50 NDPS Act has to follow mandatorily. In the present
case, in the search of motor cycle at public place, the seizure of
contraband was made, as revealed. Therefore, compliance of
Section 50 does not attract in the present case. It is settled in the
case of Vijaysinh (supra) that in the case of personal search only,
the provisions of Section 50 of the Act is required to be complied
with but not in the case of vehicle as in the present case,
following the judgments of Surinder Kumar (supra) and
Baljinder Singh (supra). Considering the facts of this Court, the
argument of non-compliance of Section 50 of NDPS Act
advanced by the counsel is hereby repelled.”
33. In the present case along with the car, the accused/applicant persons
were also searched. Hence, the question which arises is that whether the
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provisions of Section 50 were complied with when the person of the
applicant was searched. I am of the opinion that Section 50 was duly
complied with. In the charge-sheet it is clearly stated that the personal search
was conducted in the presence of ACP.
“Thereafter in the presence and surveillance of ACP Sir, SI
Vikas Sahu took the cursory search of both the accused persons
Harjit Singh S/O Satpal Singh (age 19 years) and Hardeep Singh
S/O Gurcharan Singh (age 23 years) R/O WZ-48A, gali no.6,
Guru Nanak Nagar, Tilak Nagar, Delhi but nothing
incriminating was found. Rest are police proceedings .”
34. Since while searching the person of the applicant, the ACP was
present, the provisions of Section 50 stand complied with.
35. I am of the view that since the mandatory condition of section 50 has
been complied with, the bar imposed by section 37 needs to be met by
applicant.
C. Bar imposed by Section 37
36. The total recovery of the alleged substance was 58.500 Kgs (weighed
on weighing machine kept in the IO kit)found in three kattas weighing
17.500 kg, 22 kg & 19 kg respectively. The quantity recovered from the
accused persons was of commercial quantity.
37. Even if it is assumed that non-compliance of section 41 will vitiate
trial, this case involves commercial quantity of the narcotics drugs. Though
in the present case, even though I am prima facie of the opinion that there is
non-compliance of Section 41, the rigours of section 37 of NDPS Act have
to be still met.
38. Bail in this case can only be granted when it is shown that there are
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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.
39. In State of Kerala v. Rajesh , (2020) 12 SCC 122, the Supreme
Court observed:
“19. The scheme of Section 37 reveals that the exercise of power
to grant bail is not only subject to the limitations contained under
Section 439 CrPC, but is also subject to the limitation placed by
Section 37 which commences with non obstante clause. The
operative part of the said section is in the negative form
prescribing the enlargement of bail to any person accused of
commission of an offence under the Act, unless twin conditions
are satisfied. The first condition is that the prosecution must be
given an opportunity to oppose the application; and the second,
is that the court must be satisfied that there are reasonable
grounds for believing that he is not guilty of such offence. If
either of these two conditions is not satisfied, the ban for
granting bail operates.
20. The expression “reasonable grounds” means something
more than prima facie grounds. It contemplates substantial
probable causes for believing that the accused is not guilty of the
alleged offence. The reasonable belief contemplated in the
provision requires existence of such facts and circumstances as
are sufficient in themselves to justify satisfaction that the accused
is not guilty of the alleged offence. In the case on hand, the High
Court seems to have completely overlooked the underlying object
of Section 37 that in addition to the limitations provided under
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the CrPC, or any other law for the time being in force, regulating
the grant of bail, its liberal approach in the matter of bail under
the NDPS Act is indeed uncalled for.”
40. The submission made by learned counsel for the applicant to the
effect that there has been procedural aberration in compliance of the section
41 (2) NDPS Act, is of no consequence. The non-compliance of Section 41
will not absolve the accused from the rigours of Section 37 of the NDPS
Act.
41. 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. For the limited purpose of consideration of this application, I
am not 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. Having considered all the relevant
aspects, I am of the view that the applicants cannot be enlarged on bail.
42. 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.
43. The bail application is dismissed of in the above terms.
JASMEET SINGH, J
NOVEMBER 18, 2022
sr
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