P&H HC| Violation of mandatory provision of Section 42 of the NDPS Act entitles accused to bail even if the recovery is of commercial quantity of contraband

Punajb and Haryana High Court

Punajb and Haryana High Court: In a petition filed under section 439 CrPC for grant of regular bail under Sections 22, 25, 27-A and 29 of the NDPS Act, Jasjit Singh Bedi, J, reiterating the observations made by various Courts including the Supreme Court on the mandatory compliance of section 42 of the NDPS Act by the concerned authority (in this case, the police), enlarged the petitioner-accused on bail. The Court observed that,

“Violation of the mandatory provisions of the Act would entitle the accused to the grant of bail even if the recovery is of commercial quantity of contraband”

The brief facts of the case are that a secret informer informed the police about the accused-petitioner’s habitual selling of intoxicating tablets and it was further informed by him that the accused-petitioner was going to sell the tablets to his customers arriving in a white colour Activa scooter on the side of the drain bridge at Bathinda road. Founding the information reliable, a ruqa was sent to the police station concerned for registering the FIR against the accused-petitioner. During the course of investigation the check post was installed and the accused-petitioner was apprehended and 2000 strips, each strip containing 10 tablets i.e. 20,000 intoxicating tablets of Tramadol Hydrochloride labeled as Radol-100 were recovered from him. During the interrogation, he disclosed the names of co accused persons in the present case.

The counsel for the accused applicant made a submission that since 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 search and seizure was completely vitiated as Section 42 of the NDPS Act has been violated and the mandatory provisions of the act would entitle the accused-petitioner to the grant of bail even if the recovery is of commercial quantity of contraband.

The counsel for the state on the other hand contended that since the plastic bag containing the intoxicating tablets had fallen on the ground and when the active scooter slipped it could not be said that the contraband was kept or concealed in any conveyance and, therefore, Section 42 of the NDPS Act would not be attracted. He further contended that due to heavy recovery being effected from the accused-petitioner, he could not be enlarged on bail.

The Court referred to various judgments of the Supreme Court and the High Courts, wherein it was held that delayed compliance with a satisfactory explanation for the delay can still be countenanced but total non-compliance with the provisions of Section 42(2) is impermissible, etc. On finding that the secret information was never received in writing, the Court held that there has been complete non-compliance of the provisions of Section 42(2) of the NDPS Act.

The Court, hence, recorded a prima facie satisfaction under Section 37 of the NDPS Act that there are reasonable grounds to believe that the petitioner is not guilty of the offence and was not likely to commit any offence while on bail as he has clean antecedents. He was, hence, directed to be released on bail.

[Pankaj v. State of Punjab, 2022 SCC OnLine P&H 1296, decided on 14-06-2022]


Advocates who appeared in this case :

Parminder Singh Sekhon, Advocate, for the petitioner;

Punjab Kirat Singh Sidhu, Deputy Advocate General, for the Respondent.

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