Headline: Non-compliance with Section 42 NDPS Act and valid pharmaceutical licensing of seized drugs warrant grant of bail.

In brief

The question

1. Whether the mandatory procedural requirements under Section 42 of the NDPS Act were complied with when the information leading to the search was recorded by one officer but forwarded by another.

The court held

The court granted regular bail to the petitioner, answering that the combined factors of procedural doubt under Section 42, the licensed nature of the goods, and the violation of the right to a speedy trial satisfied the court that there are reasonable grounds for bail despite Section 37.

It also directed

The petitioner was ordered released on a personal bond of Rs. 50,000/- with two sureties, subject to conditions including surrendering his passport and maintaining an active mobile contact for the Investigating Officer.

01Facts

The petitioner seeking regular bail was arrested on 08.04.2024 following disclosure statements by co-accused Rahul Varshney and Tushar Aggarwal.

¶ 7.1

The prosecution alleged that the petitioner operated a network of pharmaceutical firms (Sunrise Pharmaceuticals, NA Pharma, Medisales Pharma, and AC Pharmaceuticals) to procure and distribute psychotropic substances, specifically Tramadol and Codeine Phosphate.

¶ 7.3, 10

Commercial quantities of these drugs were recovered from the godown of Sunrise Pharma.

¶ 10

The petitioner contended that all entities held valid drug licenses and the recovery was supported by invoices, suggesting the matter was merely a regulatory lapse regarding storage rather than a criminal offense under the NDPS Act.

¶ 7.11, 36

02Issues

i.1. Whether the mandatory procedural requirements under Section 42 of the NDPS Act were complied with when the information leading to the search was recorded by one officer but forwarded by another.

¶ 31, 34

ii.2. Whether the possession of psychotropic substances by a licensed dealer at an unauthorized location constitutes an offense under the NDPS Act or a regulatory infraction under the Drugs & Cosmetics Act.

¶ 36, 41

iii.3. Whether prolonged pre-trial incarceration exceeding two years, coupled with a lack of prior convictions and parity with bailed co-accused, warrants the grant of bail despite the rigors of Section 37 of the NDPS Act.

¶ 43, 47, 50

03Law Applied

The court primarily applied Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 for bail jurisdiction and Section 37 of the NDPS Act regarding the twin conditions for bail in commercial quantity cases.

¶ 1, 27, 50

It relied on Section 42(2) of the NDPS Act, which mandates that an officer receiving information must reduce it to writing and inform a superior.

¶ 31

The court cited Karnail Singh v. State of Haryana regarding substantial compliance with Section 42 and Zakey Ahmed v. State of NCT of Delhi emphasizing that the officer who receives information must be the one to record it.

¶ 17, 19, 34

Furthermore, it applied the principle from Mohd. Muslim alias Hussain v. State (NCT of Delhi), which establishes that Article 21 rights and the right to a speedy trial can override the restrictive conditions of Section 37 in cases of prolonged delay.

¶ 45

Provisions in the judgment · 3 · Linked ones open on LawLens

Bharatiya Nagarik Suraksha Sanhita, 2023 Section 483

Indian Penal Code, 1860 Section 420

Code of Criminal Procedure, 1973 Section 161

04Reasoning

The court observed a prima facie "debatable issue" regarding Section 42 compliance, noting that the officer who first received the information (SI Vishal Malik) did not communicate it to the superior; instead, Inspector Manender Singh forwarded the information based on hearsay.

¶ 32-34

Regarding the nature of the offense, the court noted that the prosecution did not dispute that the firms held valid licenses, suggesting the core allegation was improper storage rather than wholly illicit possession.

¶ 36-37, 41

The court balanced the severity of the charges against the petitioner’s 25-month incarceration and the fact that 44 witnesses remained to be examined, concluding the trial would be protracted.

¶ 42-43

It found that the petitioner, having no prior convictions and maintaining parity with co-accused already on bail, met the threshold for relief as pre-trial detention cannot become punitive.

¶ 46, 48-50