1994 (4) TMI 173 - HC - Customs

Issues Involved:
1. Inconsistencies in the detention mahazar and statements.
2. Non-compliance with Section 42 of the NDPS Act.
3. Legality of the search conducted after sunset.
4. Non-compliance with Section 50 of the NDPS Act.
5. Failure to follow procedures under Section 52-A of the NDPS Act.

Issue-Wise Detailed Analysis:

1. Inconsistencies in the Detention Mahazar and Statements:
The petitioners argued that there was an inherent improbability in the case against them, citing inconsistencies between the first detention mahazar and the statements recorded. The detention mahazar stated that only two persons were seen getting into the car, whereas the statements recorded indicated three persons were found in the car at the time of interception. This discrepancy, according to the petitioners, posed a grave and serious doubt in the genuineness of the statements and mahazar prepared by the respondent.

2. Non-compliance with Section 42 of the NDPS Act:
The petitioners contended that the respondent officials had a definite information about the trafficking and transport of narcotic drugs and thus were required to record the same in writing and send a copy to the immediate superior officer as mandated by Section 42 of the NDPS Act. The respondents failed to comply with this requirement, which amounted to non-compliance with the mandatory directions of the law. The court noted that the document titled "GIST of INTELLIGENCE" provided definite information about the commission of offenses, which should have triggered the mandatory compliance under Section 42.

3. Legality of the Search Conducted After Sunset:
The petitioners argued that the search conducted at about 9 P.M., after sunset, violated the mandate of Section 42 of the NDPS Act, which generally restricts searches to between sunrise and sunset unless there is a recorded reason for urgency. The court acknowledged this argument but did not find it sufficient on its own to grant bail.

4. Non-compliance with Section 50 of the NDPS Act:
The petitioners claimed that the requirement to inform the accused that their person would be searched in the presence of a Gazetted Officer or the nearest Magistrate, as mandated by Section 50 of the NDPS Act, was not complied with. The court found some merit in the respondents' argument that Section 50 might not be applicable since the search was of vehicles and not persons. However, the court emphasized that the mandatory provisions of Section 42 were not followed.

5. Failure to Follow Procedures under Section 52-A of the NDPS Act:
The petitioners also argued that the failure to file a petition before the appropriate court or learned Magistrate to take photographs and follow necessary procedures as provided under Section 52-A of the NDPS Act amounted to a clear violation of the Act. The court did not address this issue in detail but noted that the non-compliance with Section 42 was sufficient to grant bail.

Conclusion:
The court held that the non-compliance with the mandatory provisions of Section 42(2) of the NDPS Act, which required recording the details of information about the commission of the offense and sending a special report to the superior officer, amounted to a serious procedural lapse. This non-compliance was presumed to cause serious prejudice to the accused. Therefore, the petitioners were entitled to be enlarged on bail. The court granted bail with specific conditions to ensure the petitioners' compliance with legal obligations and prevent interference with the prosecution process.

Conditions for Bail:
1. Each petitioner to execute a bond for Rs. 1,00,000 with two sureties for a like sum each.
2. Petitioners to reside within Trichirapalli Municipal town limits and report daily at 10 A.M. and 6 P.M. to the respondent.
3. Petitioners not to move out of the town without court permission.
4. Petitioners not to meddle with prosecution witnesses or cause impediment to the trial or indulge in any offenses.

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