2018 (1) TMI 61 - HC - Indian Laws

Release on bail - compliance of section 42 of NDPS Act - Held that - in the present case it can safely be held that since the search was made in the presence of a Gazetted Officer and the secret information which was received by an officer was the Gazetted Officer, there was no need for recording the same and to pass on the same to higher authority. There was therefore sufficient compliance made in the present case because the secret information was recorded in writing and thereafter a team of officers was constituted after consultation with the senior authority for making search of the accused and seizure of the illegal narcotic injections from him. Though there are a number of other arguments which have been made by the learned amicus curiae, they need not be discussed in detail at the stage of bail. Bail application dismissed.

Issues Involved:
1. Compliance with Section 42 of the NDPS Act.
2. Compliance with Section 57 of the NDPS Act.
3. Compliance with Section 55 of the NDPS Act.
4. Admissibility of the confession under Section 67 of the NDPS Act.
5. Credibility of recovery without independent witnesses.
6. Delay in sending samples to the Forensic Science Laboratory.
7. Previous acquittal of the co-accused and its impact on the present case.

Issue-wise Analysis:

1. Compliance with Section 42 of the NDPS Act:
The appellant argued that the mandatory provisions of Section 42 were not complied with, citing the Supreme Court's ruling in *State of Rajasthan vs Jag Raj Singh alias Hansa*. The defense highlighted that the secret information recorded and the information sent to the circle officer were different, constituting a breach of Section 42(2). The prosecution countered by stating that the secret information was received by a Gazetted Officer, Shri D K Singh, and was duly forwarded to the Deputy Narcotic Commissioner, Lucknow. The court referred to *Gyan Chand vs State of Haryana* and other relevant cases, concluding that since the search was conducted in the presence of a Gazetted Officer and the secret information was recorded and acted upon appropriately, there was sufficient compliance with Section 42.

2. Compliance with Section 57 of the NDPS Act:
The appellant contended that the compliance with Section 57 was deficient as the report was sent to Shri D K Singh, a member of the raiding party, thus not an independent person. The prosecution argued that the highest officer in the district, Shri D K Singh, was the appropriate recipient of the report. The court found that the compliance with Section 57 was adequately met as per the legal requirements and the hierarchical structure of the Central Bureau of Narcotics.

3. Compliance with Section 55 of the NDPS Act:
The appellant claimed non-compliance with Section 55, arguing that the seal of the recovered contraband substance by the Incharge of the police station was not affixed. This issue was not elaborated upon in detail by the court, indicating that it did not find substantial merit in this argument at the bail stage.

4. Admissibility of the confession under Section 67 of the NDPS Act:
The appellant argued that the confession recorded under Section 67 was invalid as it was not made before independent witnesses and was obtained by officers of the raiding party, who should be treated as police officials. The prosecution, relying on *Ram Singh vs Central Bureau of Narcotics*, argued that officers of the Central Bureau of Narcotics are not police officers within the meaning of Sections 25 and 26 of the Indian Evidence Act. The court agreed with the prosecution, stating that the confession was admissible and there was no evidence of coercion or duress.

5. Credibility of recovery without independent witnesses:
The appellant argued that no independent witness was taken to prove the recovery, affecting transparency and credibility. The prosecution countered by stating that the recovery was conducted in the presence of witnesses and officers, and no enmity with the raiding party was shown by the defense. The court found that the recovery process was credible and transparent.

6. Delay in sending samples to the Forensic Science Laboratory:
The appellant pointed out the delay in sending the samples for testing, arguing the possibility of tampering. The prosecution provided a detailed explanation for the delay, which was accepted by the court. The court noted that the accused did not challenge the forensic report during the trial, indicating acceptance of its validity.

7. Previous acquittal of the co-accused and its impact on the present case:
The appellant mentioned the acquittal of the co-accused, arguing for similar treatment. The prosecution stated that an appeal against the co-accused's acquittal was filed. The court did not find this argument sufficient to grant bail, emphasizing the distinct circumstances of each case.

Conclusion:
The court, after considering all arguments and evidence, concluded that it was not satisfied that there were reasonable grounds for believing the accused was not guilty or that he would not commit any offense if released on bail. Consequently, the bail application was dismissed.

← Previous Next →