In cases involving the NDPS Act, strict compliance with statutory safeguards, particularly those related to arrest and seizure procedures, is crucial to ensure the protection of individual rights and to prevent arbitrary actions by law enforcement agencies.

JUDGMENT :

(Partha Sarathi Sen, J.) :

1. The instant case as arises out of an application under Section 439 of the Code of Criminal Procedure, 1973, is taken up for passing judgement.

2. In course of hearing learned advocate for the accused-petitioner at the very outset draws our attention to page no.21 and page no.24 of the instant bail application being photocopy of the seizure list dated 03.02.2022 showing recovery of commercial quantity of contraband articles from the possession of the present accused-petitioner and a photocopy of the memo of arrest dated 03.02.2022 in the name of the present accused petitioner. Attention of this Court is also drawn to Section 36 C and Section 37 of the NDPS Act, 1985.

3. It is contended on behalf of the petitioner that on perusal of the aforesaid two sections it would appear that the provisions of Cr.P.C including the provisions of bail and bonds shall apply to the proceedings under the NDPS Act, 1985 and the offences under the aforesaid Act are cognizable in nature. Drawing attention to a photocopy of the seizure list and a photocopy of the memo of arrest as has been annexed with the instant bail application it is contended that in the instant case there occurred a violation of the mandate of Section 41B of Cr.P.C in view of the fact that column no. 10 of the memo of arrest has been kept blank especially when there is clear mandate of the legislature while enacting Section 41B of Cr.P.C that every officer while making arrest shall prepare a memorandum of arrest which shall be attested by atleast one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made. It is argued further that from the seizure list as well as from the memo of arrest it would appear that the alleged seizure and/or arrest was done on 03.02.2022 during day time at the P.O which is a moderately populated area but on the part of the prosecution no justification has been given as to why they failed to comply with the provisions of Section 41B of Cr.P.C while arresting the present accused-petitioner in connection with the instant case.

4. In course of hearing learned advocate for the accused-petitioner also took us to Section 52A of the said Act of 1985 and to the Narcotics Drugs and Psychotropic Substances (Seizure, Storage Sampling and Disposal Rules), 2022 (hereinafter referred to as the ‘said Rules of 2022’ in short).

5. It is contended by him that both Section 52A of the said Act and Rule 3 of the said Rules of 2022 categorically indicate that after seizure of any narcotic drugs, psychotropic substances and control substances, an inventory of the said seized articles containing the details of the description, quality, mode of packaging, marks, numbers, etc. is mandatorily to be made. It is contended on behalf of the petitioner that in the case in hand the prosecution has also miserably failed to make such inventory as mandated under Section 52A of the said Act of 1985 read with Rule 3 of the said Rules of 2022 and thus a gross infraction of rules occurred on the part of the prosecution making the alleged seizure very doubtful. In respect of his contention learned advocate for the petitioner places his reliance upon the following reported decisions namely:-

1. Noor Aga vs. State of Punjab and Anr. reported in (2008) 16 SCC 417;

2. Union of India Vs. Mohanlal and Anr. reported in (2016) 3 SCC 379;

3. Satender Kumar Antil vs. Central Bureau of Investigation and Anr. reported in (2022) 10 SCC 51;

4. Tofan Singh vs. State of Tamil Nadu reported in (2021) 4 SCC 1;

5. State of Punjab vs. Baldev Singh reported in (1999) 6 SCC 172; and

6. Laxmi Sardar & Anr vs. The State of West Bengal reported in 2015 SCC Online Cal 2281: (2015) 3 Cal LT 623.

6. Learned advocate for the petitioner further submits that on a comparative study of the seizure list and the memo of arrest it would also appear that those are in different handwritings which also raises a serious doubt