Point of Law- It is pertinent to note that in the bail application the appellants, it was alleged, that there was serious violation of Section 42 of the NDPS Act. In the impugned order nothing is stated about the alleged violation of Section 42 and it is observed that it was not necessary to consider such violation at this stage. The compliance of Section 42 is mandatory and that is a relevant fact which should have engaged attention of the Court while considering the bail application.

ORDER :

1. This petition is filed under Sections 437 and 439 of Code of the Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking regular bail to the petitioners/A-2 and A-3 in connection with Crime No. 76 of 2021 of K.D. Peta Police Station, Visakhapatnam Rural for the offence punishable under Section 20(b)(ii)(c) r/w 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’).

2. The case of the prosecution is that on 12.06.2021 on receipt of reliable information about illegal transportation of Ganja, police rushed to Alluri Park, A.L. Puram village of Golugonda Mandal and while conducting vehicle check at about 5.00 a.m. they found Eicher Van bearing No. MH-40-Y-9235 and three persons were found in the vehicle. On seeing the police, they tried to escape, but the police caught hold of petitioners, but another person managed to escape from the spot. On searching the vehicle, police found 390 KGs of Ganja and on personal search of petitioner, they found Rs. 550/-. Police seized the contraband, arrested the petitioners under the cover of Mahazarnama. Basing on the same, the present crime was registered.

3. Heard Sri. G. Venkata Reddy, learned counsel for petitioner and Sri. Anand Kumar Kochiri, learned Assistant Public Prosecutor for respondent-State.

4. Learned counsel for petitioner submits that it is alleged that 390 KGs of Ganja is seized in this crime and the petitioner was arrested on 12.06.2021 and remanded to judicial custody, since then he has been languishing in jail. He submits that arrest, search and seizure were made contrary to provisions of the NDPS Act. He submits that for granting bail, there are stringent provisions under the NDPS Act, as such the other provisions also have to be followed. He submits that as per the mediators report, personal search of petitioner has been carried out by respondent-police and one mobile phone was seized from the possession of petitioner, without following the procedure enshrined under Section 50 of NDPS Act. He submits that Section 50 of NDPS Act might not have been required to be complied with insofar as search of vehicle is concerned, but while conducting personal search of accused, it is mandatory to comply with procedure prescribed under Section 50 of NDPS Act. He submits that no General Diary entry was made with regard to receipt of information and no information is forwarded to the Superior officers.

5. Learned counsel for petitioner submits that an obligation is cast upon the Gazetted Officer to inform the accused about his right and non-compliance of that procedure would vitiate the entire proceedings against the accused person. He relied on the judgments of the Apex Court in Ashok Kumar Sharma vs. State of Rajasthan, (2013) 2 SCC 67 and Sarija Banu alias Janarthani alias Janani vs. State through Inspector of Police, (2004) 12 SCC 266 with regard to compliance of Section 42 of NDPS Act. He submits that in this case there is clear violation of procedure contemplated under Sections 42 and 50 of NDPS Act. He submits that as per the mediators report, the officer has informed that he is a Gazatted Officer and if he has no objection, he will search the gunny bags and thereafter the Inspector of Police has also searched the person of accused. He submits that this is in clear violation of Section 50 of NDPS Act and the law laid down by the Apex Court. He submits that it is not the case of prosecution that petitioner has got any criminal antecedents, as such his case may be considered for grant of bail.

6. Sri. Anand Kumar Kochiri, learned Assistant Public Prosecutor submits that the contention of learned counsel for petitioner that no GD entry was made is incorrect, in fact GD entry was made and information was also submitted to the superior officers. He relied on the Judgment of the Apex Court in Union of India through Narcotics Control Bureau, Lucknow vs. Md. Nawaz Khan, 2021 SCC Online SC 782 and submits that when personal search and search of accused