Non-compliance with mandatory provisions for conducting searches under relevant sections of narcotics laws can form a basis for establishing a prima facie case justifying enlargement on bail.

JUDGMENT

Hemant Chandangoudar, J. - On 23.12.2022 at 3:00 p.m. the Police Sub-Inspector received a credible information, that the accused were trying to sell MDMA and other narcotic substances, and upon receiving such information, the Police Sub-Inspector went to the spot accompanied by the staff members & Gazetted Officer and the Assistant Director of Mysuru Regional Forensic Laboratory and with two panch witnesses and also took a MDMA testing kit and a laptop to the spot. It was further alleged that, when the Police Sub-Inspector came to the spot, the accused tried to escape and the police surrounded and apprehended them.

2. On enquiry, the accused admitted that they were in possession of MDMA, Ecstasy Tablets and LSD blots with an intent to sell them. Upon conducting the body search, the accused were found in possession of the aforesaid narcotic substances. Thereafter, the FIR was registered for the offence punishable under Section 22B of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act').

3. Sri. A.S.Ponnanna, learned Senior Counsel appearing for the petitioners' counsel submits that search was conducted in violation of the mandatory provisions contained in Sections 42 and 50 of the Act. The said provisions are mandatory and as such, the search conducted stands vitiated and accused No.2 has made out a prima facie case to enlarge him on bail. In support, he places reliance on the decision of the Hon'ble Supreme Court in the case of Sukhdev Singh Vs. State of Haryana reported in 2013 (2) SCC 212 and the decision of the Hon'ble Supreme Court in the case of Karnail Singh Vs. State of Haryana reported in 2009 (8) SCC 539.

4. On the other hand, learned High Court Government Pleader submits that accused No.2 was found in possession of narcotic substances, and the search was conducted strictly in conformity with the provisions contained in Sections 42 and 50 of Act. Hence, accused No.2 is not entitled to be enlarged on bail and sought for dismissal of the petition.

5. I have examined the submissions made by learned counsel for the parties.

6. Proviso to Section 42 of the Act specifies that if the Officer has reasons to believe that a search warrant cannot be obtained without offering opportunity for concealment of evidence he may enter and search between the sunset and sunrise after recording the grounds of his belief. To put simple, when there is exigencies, the officer specified without obtaining search warrant can conduct search after recording the reasons.

7. The records placed by the learned HCGP does not indicate that, the Police Sub-Inspector has recorded reasons for conducting the search without obtaining search warrant.

8. In terms of Section 50 of the Act, the Police Sub-Inspector has posed question to the accused No.2, as to whether search can be conducted in presence of the Gazetted Officer or the Magistrate, to which the accused No.2 has replied that the search may be conducted in presence of the Gazetted Officer. Seizure panchanama indicates that the search was conducted on the spot. Whether the search was conducted in compliance of Sections 42 and 50 of the Act is the matter which requires to be considered after full fledged trial and at this stage, the accused No.2 has made out a prima facie case to enlarge him on bail. Accordingly, I pass the following

ORDER

Criminal petition is allowed and the petitioner is ordered to be enlarged on bail in Crime No.86/2022 registered by the Ashokpuram Police Station pending on the file of the Principal District and Sessions Judge, Mysuru by imposing the following conditions.

i. Petitioner shall furnish a personal bond for a sum of Rs.1,00,000/- with one surety for the likesum to the satisfaction of the Investigating Officer;

ii. He shall not threaten the witnesses in whatsoever manner;

iii. He shall not get involved in similar offences;

iv. He shall not leave the territorial limits without permission of the Investigating Officer.

v. He shall appear before the Invest