The Delhi High Court has opined that Section 41 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “NDPS”) is a discretionary provision, and non-compliance with this provision solely cannot be a ground to grant bail to the Accused. It was further held that non-compliance with a discretionary provision of Section 41 cannot absolve the Accused from following the rigour of Section 37.
Brief Facts:
The Accused/Applicant was caught in possession of an illicit drug while he along with the co-accused i.e., the brother of the Accused was unloading drugs from a car. Thereafter, the arrest was made and hence, the present Bail Application has been preferred by the Accused.
Contentions of the Applicant:
It was contended by the Applicant that the mandatory provision Section 41 of the NDPS has not been followed as the Inspector who gave orders for taking action against the Accused was neither a Gazetted Officer nor a competent authority as per Section 41. It was argued that the search and seizure could only be conducted after obtaining permission and authorization from the concerned authority as per Section 41.
It was further alleged that the notice served under Section 50 of NDPS was illegal as the officer serving the notice was not authorized to do it. It was argued that the non-compliance with Section 50 renders the recovery of drugs fruitless and the same will vitiate the trial.
Contentions of the State:
It was argued that the present case is an example of chance recovery as recovery was only done because of the suspicious behaviour of the Applicant. There was no prior knowledge as per Sections 41 and 42 of NDPS. Since there was no “reason to believe or prior information” as contemplated in Section 41, the said Sections will have no application. As for Section 50, it was contended that the provision was duly complied with as the search was conducted in the presence of ACP.
Observations of the Court:
On the question of whether this case was an example of chance recovery, the Court observed that it was due to the wary and suspicious behaviour of the Applicant that the officials started questioning the Applicant. After the interrogation of the Applicant, the inspector was informed via phone call and received orders to take appropriate actions following which a notice was served under Section 50 of NDPS.
The High Court pointed out that after the enquiry was conducted, the Officials had reason to believe from information given by any person, and therefore, the case shifted from “no prior knowledge” to “reason to believe”. The recovery could happen only because of the information given by the Applicant during the enquiry conducted by the official and hence, the case was no longer a chance of recovery. It was observed that when the case falls under “reason to believe” the gazette officer is required to issue authorization and in the present case authorization must have been issued.
Concerning Section 41 of NDPS, the Bench observed that it is only the ACP who is empowered to authorize any subordinate officer to conduct search and seizure. The Inspector in the present case was not a gazette officer and neither the ACP nor any Magistrate in accordance with Section 41 authorized any officer to conduct search and seizure. It was held that prima facie Section 41 was not complied with.
However, on the question of granting bail only because Section 41 NDPS was not followed, the Delhi High Court opined that non-compliance with Section 41 solely cannot be a ground to grant bail. It was observed that the provision of Section 41 is discretionary and the fact that non-compliance with the Section will vitiate the trial is something that will be seen at the trial stage and not when deciding on the application of Bail.
On non-compliance with Section 50, the Bench was of the view that the personal search of the Applicant was conducted in presence of ACP and hence, Section 50 was complied with.
Further, it was noted that the Applicant in terms of quantity of drugs, had commercial quantity. It was opined that despite non-compliance of Section 41 rigours, the bar of Section 37 has to be met by the Applicants wherein the reasonable grounds to believe that the Accused has not committed the offence and while on Bail will not commit the offence have to be established.
The High Court noted that the non-compliance with Section 41 will not absolve the Applicant from complying with Section 37 of NDPS. This bar of Section 37 cannot be ignored or superseded by a discretionary provision like Section 41.
The decision of the Court:
Therefore, since there were no reasonable grounds to believe that the Applicant has not committed the offence, the Delhi High Court rejected the bail application and dismissed the same.
Case Title: Hardeep Singh v. The State
Coram: Hon’ble Mr. Justice Jasmeet Singh
Case No.: BAIL APPLN. 3582/2021
Advocates for Petitioner: Advs. Ms. Sushma Sharma, Mr. Girish Kumar Sharma, Mr. Karan Verma, and Ms. Aayushi Gaur
Advocates for Respondent: Mr. Pradeep Gahalot, APP
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