Accused entitled to bail if mandatory provisions violated

SECTION 42 OF THE NDPS ACT LAYS DOWN THE PROCESS TO BE FOLLOWED IN DRUG SEIZURE CASES

CHANDIGARH: The Punjab and Haryana high court has said that the violation of mandatory provisions entitles the accused to bail in drug seizure cases even if the seizure is of commercial quantity.

“...while delayed compliance was acceptable, however, where there was a total non-compliance of Section 42 (Narcotic Drugs and Psychotropic Substances Act, 1985) as appears to be the case herein, the accused ought to be granted the concession of regular bail,” the high court bench of justice JS Bedi said.

Section 42 of the NDPS Act lays down the process to be followed in drug seizure cases.

The plea was from a drug case accused, Pankaj, booked on November 8, 2020, at Police Station City Sunam, Sangrur district.

The police claim was that a check post was installed on a tip-off and the accused was caught carrying 2,000 strips, each strip containing 10 tablets of Tramadol Hydrochloride labelled as Radol-100.

The plea in the high court said the search and seizure are completely vitiated as Section 42 of the NDPS Act has been violated. 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/authorisation could not be obtained prior to setting up of a naka after sunset. “The police party was travelling in a private vehicle and the details of the ownership of the said private vehicle had not been 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,” the accused had argued. It was further contended that the petitioner was a first-time offender and in custody since the day of seizure and none of the 23 prosecution witnesses had been examined so far. Hence, the delayed trial itself entitled him to the grant of bail. Moreover, violation of the mandatory provisions of the drugs law would entitle the accused to the grant of bail.

The state had argued that there has been substantial compliance of Section 42 of the NDPS Act. Heavy recovery of the contraband has been effected from the petitioner which does not entitle him to the grant of bail.

The court observed that in view of the violation of mandatory provisions by police while effecting arrest, a prima facie satisfaction can be recorded 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. Section 37 of the NDPS Act bars bail in commercial quantity seizure cases, unless the court is satisfied with the accused not being guilty.

The court ordered that he be released on bail. However, directed that on the first Monday of every month till the conclusion of the trial, he will inform in writing each time that he is not involved in any other crime. If the petitioner commits a similar offence, the state would be at liberty to seek cancellation of the bail, the court ordered.