Karnataka High Court: While deciding a criminal petition filed under Section 439 of CrPC, a Single Judge Bench comprising of Budihal R.B., J., enlarged the petitioners on bail based on the finding that the provisions of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, were not complied with by the investigating authority.

The petitioners were accused under Section 20(b) of the NDPS Act. They filed the instant petition seeking bail on the ground that the procedure and mandatory requirements as prescribed under the NDPS Act were not followed and complied with before arresting the petitioners. Hence, the petitioners prayed that they may be granted bail by imposing reasonable conditions.

The High Court perused the record as well as the concerned provisions of the NDPS Act. The Court found that there was contradiction in the records regarding the timing of the information received by the concerned police officer. There was no consistency regarding the time of information received. This amounts to non-compliance of mandatory requirements of Section 42(1) of the NDPS Act. It was further found that personal search of the petitioners was also conducted and again mandatory requirements under Section 50 of NDPS Act were not complied with, as the investigating authority failed to explain the accused about their right to exercise their option whether personal search has to be conducted before a Gazatted Officer or a Magistrate. Also while weighing the ‘ganja’ recovered, the whole ganja plant including stem was weighed, which was in violation of Section 2(b) of the Act.

Accordingly, based on the above findings, the petition was allowed and the petitioners were enlarged on bail, subject to the conditions imposed. [Rupai Kumar Das v. State of Karnataka, Crl. Petition No. 9138 of 2017, order dated January 3, 2018]

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