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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.G.Bisht, J.
Folarin Abdullaseez Andoyin - Appellant
Versus
State Of Maharashtra - Respondent
Bail Application No. 185 of 2021
Decided On : 29-11-2021
NDPS Act - Sec. 42, Sec. 43 - The court analyzed the provisions of Section 42 and 43 of the NDPS Act. It found that there was non-compliance with Section 42, which requires recording of information and sending a copy to the superior officer before conducting a search and seizure. The court also considered the explanations provided in the case law regarding the circumstances in which delayed compliance with Section 42 is acceptable. It concluded that there was no such obtaining situation in the case and granted bail to the applicant.
Fact of the Case:
The applicant was apprehended with drugs and cash in his possession during a raid conducted by the police. The applicant argued that there was non-compliance with Section 42 of the NDPS Act, which requires recording of information and sending a copy to the superior officer before conducting a search and seizure. The court examined the provisions of Section 42 and 43 of the NDPS Act and relevant case law to determine the applicability of the sections to the case. It concluded that there was non-compliance with Section 42 and granted bail to the applicant.
Finding of the Court:
The court analyzed the provisions of Section 42 and 43 of the NDPS Act and relevant case law to determine the applicability of the sections to the case. It found that there was non-compliance with Section 42, which requires recording of information and sending a copy to the superior officer before conducting a search and seizure. The court also considered the explanations provided in the case law regarding the circumstances in which delayed compliance with Section 42 is acceptable. It concluded that there was no such obtaining situation in the case and granted bail to the applicant.
Ratio Decidendi: The court held that there was non-compliance with Section 42 of the NDPS Act, which is mandatory. It found that the applicant had made out a case for bail and that the bar under Section 37(1)(ii) of the NDPS Act would not be applicable to the case.
Result: The court ordered the release of the applicant on bail, subject to certain conditions.
JUDGMENT
1. The present application has been moved by the applicant under Sec. 439 of the Code of Criminal Procedure in Crime No.616 of 2019 registered with Police Station Chaturshrungi, Pune, for offences punishable under Sec. 8(c) and 21(c) of Narcotic Drugs and Psychotropic Substances Act (NDPS Act), Sec. 65(E) of Maharashtra Prohibition Act and under Sec. 14 of Foreigner Citizen Act.
2. Informant is attached with Social Security Department, Crime Branch, Pune City as Inspector of Police. As per information received from her superiors that in Baner, Oundh, Pune, Nigerians are selling drugs like cocaine and in order to apprehend them, she formed a raiding team with police personnel and staff members including the panch witnesses.
3. They reached at around 4.30 hours at Kalamkar Chowk in Baner, Pune, and on public road, in front of Mahi Rose Nursery, found a silver Honda CRV bearing number MH 43 R9 245 parked on the side of the road. A Nigerian person was standing with a black cloth bag in his hand. The moment he saw the raiding team, he hurriedly tried to get in his car. The raiding team grew suspicious and surrounded the car. On being enquired, he introduced himself as Folarin Abdullaseez Andoyin. After apprising him of his right of search, to which he declined, the raiding party carried out the search in presence of panchas and found 488 grams and 490 milligrams white cocaine powder in a white transparent plastic bag worth Rs.48,62,800/- . The car was also searched and cash of Rs.8,39,490/- along with other articles was found. After taking the necessary sample, First Information Report (FIR) came to be lodged.
4. Mr.Mithilesh Mishra, learned counsel for the applicant, has advanced only legal submission in the form that there is total non-compliance of mandatory provision of NDPS Act, namely, Sec. 42. Despite there being previous information that the person selling the drug was a Nigerian national, according to the learned counsel, no reasons are recorded for the non-compliance of Section 42 of the NDPS Act. In view of this, the bar of Sec. 37 of the NDPS Act will not be applicable to the case in hand. For this reason alone, the applicant deserves to be released on bail, argued learned counsel. The learned counsel also placed reliance on Sarija Banu alias Janarthani alias Janani and Another vs. State through Inspector of Police (2004) 12 Supreme Court Cases 266 and Boota Singh and Others vs. State of Haryana 2021 SCC Online SC 324 .
5. Mr.Dedhia, learned APP, on the other hand, opposed the submissions by submitting that there is no applicability of Sec. 42 but it is Sec. 43 of the NDPS Act, which would be applicable in the facts and circumstances of the case.
6. Perused the FIR and the investigation papers. The controversy seems to be the applicability of Sec. 42 or Sec. 43 of the NDPS Act to the case in hand. Sec. 42 and 43 of the NDPS Act reads as under :
"42. Power of entry, search, seizure and arrest without warrant or authorisation. (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or
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