Compliance with procedural requirements under the NDPS Act, the weight of seized substances, and the impact of the COVID-19 pandemic on bail applications.

JUDGMENT

M S Jawalkar, J. - The present application is filed under Section 439 of the Code of Criminal Procedure, 1973 for bail against the order of the Additional Sessions Judge, Margao.

2. It is the case of the applicant that the case of the prosecution is that on 29.12.2019 the staff of ANTI Narcotic Cell (ANC), Panaji left for patrolling at Margao and around 15.30 hours when they reached near the electricity department near Aquem PSI Arun Desai received reliable information that one men foreign national about 40 to 45 years old tall in height and average built wearing black colour T-shirt and grey colour jeans pant will be delivering narcotic drugs to her prospective customers at the bus stop shed.

3. Since there was no time to obtain search warrant and possibility that the suspect would dispose of the narcotic drugs the PSI Desai reduced the information into writing and the grounds of belief for not obtaining such warrant and sent the same to Dy.SP at his residence. They parked the vehicle in the parking at some distance from the spot of the raid. At around 17.05 hours it is alleged that seeing the applicant and features tallying with the information, they rushed towards him and surrounded him. It is further alleged that on the search of his shoulder bag, Officer found applicant in possession of 110.820 gms of white crystaline powder suspected to be cocaine, 101.108 gms of white colour mixture of crystals and powder substance suspected to be MDMA and 240 gms of charas. FIR bearing no. 27/2019 was registered for an offence punishable under section 21(C), 22(C) and 20(b) (ii) (B) of the NDPS Act. It is submitted by the applicant that the contents in the FIR are false and fabricated. He was not in possession of any drugs.

4. It is submitted that the applicant is entitled for the bail since there is violation of Section 50 of the NDPS Act which is mandatory provision. The non-compliance of the same vitiates the entire search and seizure. The seizure was not in presence of Gazetted Officer or a Magistrate. There is clear violation of Section 42 of the NDPS Act. Not handing over a spot panchanama and seizure report to the applicant is in violation of Section 100 of CR.P.C. There were no details of the test carried out to support the contention that substance tested was contraband nor any chemical analysis report is on record.

5. The alleged substances are weighed alongwith polythene bag and hence there is no conformity weight of the cocaine and MDMA and, therefore, constraints of Section 37 of the NDPS Act are not applicable. The Chemical Analysis report is still awaited. Considering the COVID-19 pandemic there is great fear to the applicant that he may be contacted with the deadly disease.

6. The learned counsel for the Applicant Shri Sangram Desai, pointed out that if information received is perused there is no where mention that contraband is in luggage or handbag nor it is reflecting in search and seizure panchanama that such information was received. The panch witnesses are of Tiswadi which is around 30 kms away from the spot of a raid and they are not from the locality of Margao. The panch witness, alongwith PI and the raiding party appears to be the same who has earlier also acted as a panch witness alongwith them. It is also alleged that there is no reference of handing over contraband for depositing the same in the police station. There is delay in carrying out inventory and also request for issuance of authority to hand over the samples to the Director CFSL.

7. The learned counsel relied on following citations in support of his contention that if suspect is not informed by the Investigating Officer of their right to be searched before Gazetted Officer or Magistrate the conviction of the accused vitiates thereby :

(i) Bhanudas Dnyanoba Girigosawi and others Vs. State of Maharashtra, (2016) 4 MhLJ(Cri) 389;

(ii) State of Rajasthan Vs. Parmanand, (2014) CriLJ 1756;

(iii) Krishna S.o Kavi Raj Malla Vs. State,2019 2 ABR(CRI) 894;

(i