Lokesh Kumar vs State Of Uttarakhand

R.C. Khulbe, J

Accusedâ€"Lokesh Kumar has sought his release on bail in connection with Case Crime/FIR No.0061 of 2020 u/s 8/22 of the NDPS Act,

registered at P.S. Clement Town, District Dehradun.

It is argued that the accused has been falsely implicated; he is languishing in jail since 18.09.2020; as per the recovery memo, the police party had

prior information about the vehicle (motorcycle) bearing registration No.UK07-DP-1962, in spite of that, the police party did not comply with the

provision of Section 42 of the Act as also Section 100(4) of the Cr.P.C; there is no independent witness of the recovery; further, that the police party

had sufficient time to record the information but neither they recorded the information nor obtained any warrant from the competent court;

accordingly, the accused is entitled for bail in view of the law laid down by the Apex Court in the case of ‘Buta Singh v. State of Haryana’

AIR 2021 S.C. 1913.

Per contra, learned counsel for the State vehemently opposed for bail and argued that the police party did not have sufficient time to record

information as they were on patrolling duty; the police party informed the C.O.; the contraband article comes within the definition of commercial

quantity, accordingly, the accused is not entitled for bail.

Heard learned counsel for both the parties and perused the entire documents on record.

In so far as compliance of Section 42 of the NDPS Act is concerned, the Hon’ble Apex Court in the case of “State of Rajasthan v. Jag

Raj Singh†(2016) 11 SCC 687 has held that the compliance of Section 42 of the Act is mandatory in nature in such a case where the vehicle is a

private one.

The Hon’ble Apex Court in a recent case Buta Singh v. State of Haryana S(upra) has clearly held out that a private vehicle would not come

within the expression “public placeâ€​, as per explanation given to Section 43 of the Act.

It is true that the law laid down by the Apex Court is binding on the soil of India as per Article 141 of the Constitution. Now, coming to the facts of

the instant case, from a perusal of the recovery memo, it is clear that when the police party was on patrolling duty, they received information from

informer about the contraband article being brought by the accused by his vehicle bearing UK07-DP-1962. The police party reached at the spot and

apprehended the accused; they informed the accused about his legal rights as envisaged under the Act. Thereafter, S.I. Vikas Rawat informed the

C.O. Mr. Ankush Mishra through his telephone. Accordingly, the C.O. reached at the spot. The search was conducted and the said contraband article

was recovered from the bag of the accused.

The learned counsel for the applicant drew attention of this Court towards Section 42 of the Act and argued that although, the police party had prior

information, in spite of that, they did not note down the information before taking search nor obtained any search warrant.

The Constitution Bench of the Hon’ble Apex Court inS tate of Haryana v. Jarnail Singh (2009) 8 SCC 539, has held that if the information

was received when the officer was not in the police station but he was on the move, either on patrolling duty or otherwise, either by mobile phone, or

other means, and the information calls for an 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) of the Act, and thereafter, as soon as it is practical, to record the information in writing and forthwith inform the

superior officer about the same.

The heading of Section 42 of the Act starts with ‘power of entry, search, seizure and arrest without warrant or authorisation’. From

a perusal of the Section, it is clear that u/s 42 of the Act, the empowered officer has a power to entry, search, seizure and arrest without warrant or

authorization.

No doubt, in the present matter, as per the recovery memo, prima facie it is clear that the arresting party did not note down the information before

taking search, but as per the record, the police party informed their superior officer (C.O.) immediately through mobile connection No.8126372169

who reached at the spot. The search was conducted in presence of the C.O., who certainly, was the superior officer of the police party. The police

party, at first, received the information through informer while they were on patrolling duty. It is clear that although the police party was not in a

position to note down the information as they were on patrolling duty but they did properly inform their superior officer.

As far as the authority of Buta Singh (Supra) is concerned, in that case, the police party themselves searched the accused and their vehicle,

while in the present matter, the police party immediately informed their superior officer in whose presence the search was conducted.

Prima facie it is clear that the search was conducted in presence of the C.O. who was also a Gazetted Officer. Thus, it can safely be inferred that

the search was conducted as per the procedure laid down in the Act as also in the Cr.P.C.

Moreover, it is a matter of evidence, whether or not, there was a total non-compliance of Section 42 of the Act but prima facie it is apparent that

the police party had duly informed their superior officer before effecting the search. The contraband article recovered from the applicant falls within

the definition of commercial quantity.

At last, it needs to be mentioned about a judgment rendered by the Hon’ble Apex Court in the case of Union of India Vs. Ram Samujh 1999

(9) SCC 429, wherein the Hon’ble Apex Court has made following observations in Paragraph No.7 of the said judgment:-

It is to be borne in mind that the aforesaid legislative mandate is required to be adhered and followed. It should be borne in mind that in

murder case, accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in

causing death or in inflicting death blow to number of innocent young victims, who are vulnerable: it causes deleterious effects and deadly

impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their

nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved.

Looking to the aforesaid facts and circumstances of the case and particularly the law laid down by the Hon’ble Apex Court in the afore-

mentioned 0judgments, the applicant does not deserve bail at this stage. Accordingly, the bail application is dismissed.

It is clarified that the observations with regard to the case of the applicant, made in this order, are strictly confined to the disposal of this bail

application, and must not be construed to have any reflection on the ultimate merits of his case.

Given the fact that the applicant is in jail since18.09.2020, the trial of the case is expedited.

Pending application, if any, stands disposed of.