Karnataka High Court

Bharath Kumar @ Manu vs State Of Karnataka on 24 November, 2023

Author: S Vishwajith Shetty

Bench: S Vishwajith Shetty

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                                                                 NC: 2023:KHC:42441
                                                          CRL.P No. 11097 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 24TH DAY OF NOVEMBER, 2023

                                              BEFORE

                          THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY

                              CRIMINAL PETITION NO. 11097 OF 2023

                   BETWEEN:

                   BHARATH KUMAR @ MANU
                   S/O MANU
                   AGED ABOUT 30 YEARS
                   R/AT GUDDENAHALLI VILLAGE
                   KOPPA POST, HARANAHALLI
                   HOBLI, PIRIYAPATNA TALUK
                   MYSORE DISTRICT - 571 104.
                                                                       ...PETITIONER
                   (BY SRI LETHIF B, ADV.)
                   AND:

                   STATE OF KARNATAKA
                   BY BYALAKUPPE POLICE STATION
                   REP BY SPP, HIGH COURT BUILDING
                   BANGALORE - 560 001.
                                                                      ...RESPONDENT
Digitally signed
by B A
KRISHNA            (BY SRI RANGASWAMY R, HCGP)
KUMAR
Location: HIGH
COURT OF                  THIS CRL.P FILED U/S 439 CR.PC PRAYING TO RELEASE HIM
KARNATAKA
                   ON BAIL FOR THE OFFENCE P/U/S 20(b)(ii)(C), 20(B), 8(C) OF NDPS
                   ACT, REGISTERED IN CR.NO.134/2023 OF BYALAKUPPE POLICE
                   STATION,    MYSURU   DISTRICT,      PENDING   BEFORE   PRINCIPAL
                   DISTRICT AND SESSIONS JUDGE, MYSURU.


                          THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
                   COURT MADE THE FOLLOWING:
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                                             NC: 2023:KHC:42441
                                        CRL.P No. 11097 of 2023




                             ORDER

Accused no.3 in Crime No.134/2023 registered by

Bylakuppe Police Station, Mysuru District for the offences

punishable under Sections 20(b)(ii)(A), 20(c) & 8(c) of the

Narcotic Drugs and Psychotropic Substances Act, 1985 (for

short, the 'NDPS Act') is before this Court seeking regular bail.

2. Heard the learned counsel for the parties.

3. It is the case of the prosecution that on 08.08.2023

at about 7.20 a.m, Mudduraj, Police Constable attached to

Bylakuppe Police Station had received credible information

about transport of contraband article ganja weighing about 25

to 30 kgs in a vehicle bearing registration No.KL-58-B-2983

and on receipt of such an information he had submitted a

report in the Police Station, based on which FIR in Crime

No.134/2023 was registered against unknown persons and

thereafter the informant and other staff of the Police Station

intercepted the vehicle bearing registration No.KL-58-B-2983

and apprehended the inmates of the said vehicle who are 5 in

number. On searching the vehicle, they found ganja leaves in 3

bags which totally weiged 29.103 kgs. The said contraband

article was seized under a mahazar and thereafter apprehended

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accused and seized contraband article were brought to the

Police Station and subsequently produced before the

jurisdictional court and remanded to judicial custody. The

petitioner is arrayed as accused no.3 in the case. Investigation

in the case is complete and charge sheet has been filed.

4. The petitioner's bail application which was filed

before the Trial Court in Crime.No.134/2023 was rejected on

26.08.2023. Therefore, he is before this Court.

5. Learned counsel appearing for the petitioner

submits the petitioner is in custody from 08.08.2023.

Investigation in the case is complete and charge sheet has

been filed. There is no compliance of Section 42 in the present

case. The petitioner was earlier involved in a case for the

offence under NDPS Act wherein the contraband article is of

small quantity. The petitioner's name was not found in the FIR

of the said case and he was falsely implicated subsequently.

Accordingly, he prays to allow the petition.

6. Learned HCGP has opposed the bail application. He

submits that at the stage of considering the bail application, the

question whether the investigation officer or police authorities

have complied with mandatory requirements of provisions of

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NDPS Act cannot be considered. The contraband article

involved in the present is of commercial quantity. Therefore, in

view of Section 37(1)(b) of the NDPS Act, the petitioner cannot

be enlarged on bail. Accordingly, he prays to dismiss the

petition.

7. The material on record would go to show that the

first informant had received credible information that certain

persons were transporting ganja leaves weighing about 25 to

30 kg in car bearing registration No.KL-58-B-2983 and on

receipt of such information he had returned to Police Station

and submitted a report, based on which FIR in Crime

No.134/2023 was registered by Bylakuppe Police Station.

8. From a reading of Section 42 of the NDPS Act it is

very clear that the officer on receiving the information [of the

nature referred to in sub-Section(1) of Section 42] from any

person has to record it in writing in the register concerned and

forthwith send a copy to his immediate official superior, before

proceeding to take action in terms of clause (a) to (d) of

Section 42(1) of the NDPS Act. Such exercise has not been

done in the present case.

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9. The first informant after receiving credible

information had returned to Police Station and submitted a

report. The material on record does not show that information

received by him is recorded in writing in the register concerned

and a copy of the same was also not forwarded by him to his

immediate official superior and therefore there is total non

compliance of Section 42 of the NDPS Act in the present case.

The vehicle involved in the present case is undisputedly a

private vehicle. Therefore, compliance of Section 42 of the

NDPS Act becomes mandatory. The law in this regard has been

laid down by the Hon'ble Supreme Court in the case of BOOTA

SINGH & OTHERS V. STATE OF HARYANA reported in 2021

SCC ONLINE SC 324.

10. In the case of TOFAN SINGH V. STATE OF TAMIL

NADU - (2021) 5 SCC 1, the Honb'le Supreme Court held that

under Section 42(2) such empowered officer who takes down

any information in writing or records the grounds under proviso

to Section 42(1) should forthwith send a copy thereof to his

immediate official superior. If there is total non-compliance of

this provision the same affects the prosecution case. To that

extent it is mandatory. In the present case, the material on

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record would go to show that the said mandatory requirements

of law has not been complied with.

11. It is true that Section 37(1)(b) of the NDPS Act

provides certain rigors for granting bail to the accused who is

involved in a case registered for the offence punishable under

NDPS Act wherein commercial quantity of contraband article is

found. The Hon'ble Supreme Court as well as this Court time

and again have said that since Section 37 of the NDPS Act

provides for certain rigors to granting bail to accused who are

involved in case wherein contraband article quantity is of

commercial quantity, the officers concerned are required to

strictly comply with mandatory requirements of provisions of

law.

12. In the case of KISHAN CHAND V. STATE OF

HARYANA - (2013) 2 SCC 502, in paragraph nos. 16 to 19

and 21, the Hon'ble Supreme Court has observed as follows:-

"16. We are unable to contribute to this interpretation and approach of the trial court and the High Court in relation to the provisions of sub- sections (1) and (2) of Section 42 of the Act. The language of Section 42 does not admit of any ambiguity. These are penal provisions and

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prescribe very harsh punishments for the offender. The question of substantial compliance with these provisions would amount to misconstruction of these relevant provisions. It is a settled canon of interpretation that the penal provisions, particularly with harsher punishments and with clear intendment of the legislature for definite compliance, ought to be construed strictly. The doctrine of substantial compliance cannot be called in aid to answer such interpretations. The principle of substantial compliance would be applicable in the cases where the language of the provision strictly or by necessary implication admits of such compliance.

17. In our considered view, this controversy is no more res integra and stands answered by a Constitution Bench judgment of this Court in Karnail Singh. In that judgment, the Court in the very opening paragraph noticed that in Abdul Rashid Ibrahim Mansuri v. State of Gujarat, a three-Judge Bench of the Court had held that compliance with Section 42 of the Act is mandatory and failure to take down the information in writing and sending the report forthwith to the immediate superior officer may cause prejudice to the accused. However, in Sajan Abraham, again a Bench of three Judges, held that this provision is not mandatory and substantial compliance was sufficient. The Court noticed, if there is total non-compliance with the

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provisions of Section 42 of the Act, it would adversely affect the prosecution case and to that extent, it is mandatory. But, if there is delay, whether it was undue or whether the same was explained or not, will be a question of fact in each case. The Court in para 35 of the judgment held as under: (Karnail Singh case, SCC pp.554-55, para 35)

"35. In conclusion, what is to be noticed is that Abdul Rashid [(2000) 2 SCC 513 :

2000 SCC (Cri) 496] did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham [(2001) 6 SCC 692 : 2001 SCC (Cri) 1217] hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:

(a) The officer on receiving the information of the nature referred to in sub-section (1) of Section 42 from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).

(b) But if the information was received when the officer was not in the police

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station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.

(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency.

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(d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42

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or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001."

(emphasis in original)

18. Following the above judgment, a Bench of this Court in Rajinder Sing took the view that:

(SCC p. 135, para 11)

"11. ... total non-compliance with the provisions [of] sub-sections (1) and (2) of Section 42 [of the Act] is impermissible but delayed compliance with a satisfactory explanation for the delay can, however, be countenanced."

19. The provisions like Section 42 or 50 of the Act are the provisions which require exact and definite compliance as opposed to the principle of substantial compliance. The Constitution Bench in Karnail Singh carved out an exception which is not founded on substantial compliance but is based upon delayed compliance duly explained by definite and reliable grounds.

21. When there is total and definite non- compliance with such statutory provisions, the question of prejudice loses its significance. It will per se amount to prejudice. These are indefeasible, protective rights vested in a suspect and are incapable of being shadowed on the strength of substantial compliance."

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13. Therefore, the submission made by the learned

HCGP that at the stage of considering the bail application, the

question whether Investigating Officer or police authorities

have complied with mandatory requirements of provisions of

NDPS Act cannot be considered is liable to be rejected. Though

in the present case, the contraband article seized from the

possession of accused is of commercial quantity, considering

the fact that there is total non-compliance of mandatory

requirements of Section 42 of the NDPS Act, I am of the view

that rigor under Section 37(1)(b) of the NDPS Act will not fetter

the powers of this Court for granting bail to the accused. Under

these circumstances, I am of the opinion that the petitioner has

made out a prima-facie case for releasing him on regular bail.

Accordingly, the following:-

::ORDER::

The petition is allowed.

The petitioner/accused no.3 is directed to be enlarged on

bail in Crime No.134/2023 registered by Bylakuppe Police

Station, Mysuru District for the offences punishable under

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Sections 20(b)(ii)(A), 20(c) & 8(c) of the Narcotic Drugs and

Psychotropic Substances Act, 1985 subject to the following

conditions:

a) The petitioner shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with two sureties for the likesum, to the satisfaction of the jurisdictional Court;

b) The petitioner shall appear regularly on all the dates of hearing before the Trial Court unless the Trial Court exempts his appearance for valid reasons;

c) The petitioner shall not directly or indirectly threaten or tamper with the prosecution witnesses;

d) The petitioner shall not leave the jurisdiction of the Trial Court without permission of the said Court until the case registered against him is disposed off.