2021 (6) TMI 300 - HC - Indian Laws

Grant of Regular Bail - Heroin - recovery of pullandas which were seized and sealed with the seal of AK - search conducted by the Lady Constable - non-compliance alleged by the learned counsel for the petitioner is of Sections 41 and 42 of the NDPS Act - HELD THAT - Search of the co-accused Parveen was taken by a lady Constable and the same was to maintain the dignity, however the search was taken in the presence of the ACP concerned and it cannot be said that on that count the search is vitiated. Further, the search has not taken place inside any building, conveyance or place but at the public place and hence, it cannot be said that Sections 41 and 42 of the NDPS Act have been violated. In case the search conducted by the Lady Constable would have been in the absence of senior officers, who were duly authorized to conduct the search, the judgments relied upon by the learned counsel for the petitioner would have been applicable. The search in the present case was conducted at the instance of the authorized officer, but by the Lady Constable qua accused Parveen as she was a woman in accordance with law. Once the accused were apprehended, kept in custody throughout the night, FIR registered in the morning at Police Station Crime Branch at Pushp Vihar, one fails to understand why the formal arrest was made at 11 45 a.m. as is evident from the Arrest Memo. Further, the Arrest Memo notes in Column No.2 his wife being informed , as also has the right thumb impression of Begum, the wife of the petitioner - the two accused were produced before the learned ASJ who granted one day police custody remand. The petitioner is directed to be released on bail on his furnishing personal bond in sum of ₹50,000/- with one surety of the like amount subject to the satisfaction of the learned trial Court/duty Magistrate, further subject to the condition that the petitioner will not leave NCT of Delhi without the prior permission of the court concerned and in case of change of residential address and/or the mobile phone number, the same will be intimated to the Court concerned by way of an affidavit - petition disposed off.

Summary

Issues:
Regular bail application under Sections 21/29 NDPS Act - Compliance with Sections 41 and 42 NDPS Act - Allegations of illegal custody - Violation of guidelines laid down by the Supreme Court - Search conducted by unauthorized personnel - Preparation of site plan without witness - Alleged false implication - Antecedents of the petitioner - Quantity of contraband recovered - Compliance with legal procedures during arrest and search - Delay in formal arrest - Notification to family members - Previous involvement of petitioner - Grant of bail.

Analysis:
The petitioner sought regular bail in a case under Sections 21/29 NDPS Act, alleging illegal custody and non-compliance with legal procedures during arrest. The petitioner contended that he was apprehended but formally arrested later, violating guidelines laid down by the Supreme Court. The petitioner's antecedents, lack of previous involvement, and the quantity of contraband recovered were highlighted to support the bail application.

The State argued that Sections 41 and 42 of the NDPS Act were complied with, and the search conducted by unauthorized personnel was justified due to the presence of authorized officers. The State emphasized the connection between the co-accused and the evidence recovered during the raid to oppose the bail application.

The case originated from a secret information received by the Narcotics Cell, leading to the apprehension of the petitioner and another individual. The recovery of contraband and subsequent procedures, including the preparation of site plans and registration of FIR, were detailed in the judgment. The involvement of the raiding team, CDR analysis, and statements of witnesses were crucial in establishing the sequence of events.

The judgment scrutinized the compliance with legal procedures, timing of arrests, and notification to family members. The delay in formal arrest, lack of clarity on information dissemination, and the petitioner's proximity to the crime branch office were key factors considered in granting bail. The court emphasized the importance of following due process and ensuring transparency in legal proceedings.

Ultimately, the court granted bail to the petitioner, subject to specified conditions, considering the circumstances, including the belated arrest and lack of previous involvement in NDPS offenses. The judgment underscored the significance of upholding legal standards and protecting individual rights in criminal proceedings, leading to the disposal of the petition and return of case files to the Investigating Officer.