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1996 Supreme(Del) 625
High Court Of Delhi
DINESH KUMAR - Appellant
Versus
STATE OF DELHI - Respondent
Decided On : 08/01/1996
The mandatory provisions of the NDPS Act must be complied with during search and seizure, but the absence of independent witnesses or the fact that the investigation was conducted by officers of a non-declared police station does not necessarily vitiate the trial.
Headnote:
BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 50 - SEARCH AND SEIZURE - MANDATORY PROVISIONS - COMPLIANCE - INDEPENDENT WITNESSES - JOINING - PUBLIC WITNESSES - REFUSAL TO JOIN - INVESTIGATION - OFFICERS OF ANTI NARCOTIC CELL - POLICE STATION - DECLARATION - IRREGULARITY - VITIATION OF TRIAL.
Fact of the Case:
The petitioner was arrested for possession of charas under the NDPS Act. He challenged the legality of the search and seizure, alleging non-compliance with the mandatory provisions of the Act and the absence of independent witnesses. He also contended that the investigation was conducted by officers of the Anti Narcotic Cell, which was not a declared police station at the time.
Finding of the Court:
The court held that the petitioner was not entitled to bail. It found that the mandatory provisions of the NDPS Act were complied with, and that the absence of independent witnesses did not vitiate the trial. The court also held that the investigation was not vitiated merely because the Anti Narcotic Cell was not a declared police station at the time.
Issues: 1. Whether the mandatory provisions of the NDPS Act were complied with during the search and seizure? 2. Whether the absence of independent witnesses vitiated the trial? 3. Whether the investigation was vitiated because it was conducted by officers of the Anti Narcotic Cell, which was not a declared police station at the time?
Ratio Decidendi: 1. The court held that the mandatory provisions of the NDPS Act were complied with, as the notice under Section 50 of the Act, the seizure memo, and the CFSL Form were all prepared contemporaneously with the search and seizure. 2. The court held that the absence of independent witnesses did not vitiate the trial, as the prosecution may have a plausible explanation for why they were not associated in the raiding party. 3. The court held that the investigation was not vitiated merely because the Anti Narcotic Cell was not a declared police station at the time, as any irregularity in the investigation would not vitiate the trial unless it was done contrary to the mandatory provisions of law or caused prejudice to the accused.
Final Decision: The petition for bail was dismissed.
( 1 ) ON receipt of a secret information by Anti Narcotic Cell of the Delhi Police raiding party was organised which reached Delhi-Haryana Border at Badarpur at 7. 30 p. m. Four passer by were requested to join the raiding party but they left the place after showing their helplessness without telling their names and addresses. Two police officers, namely. HC Dina Nath and Constable Nakui Bedi belonging to Badarpur Police Station who were patrolling there were also joined in the raiding party. At about 8. 20 p. m. on the signal of the informer, the scooter driven by Dinesh Kumar with Manoj Kumar on the pillion seat was stopped in front of the bus stand Badarplur Border. Both. Dinesh Kumar and Manoj Kumar, were informed of the secret information and were offered to be searched in me presence of a gazetted officer or a Magistrate. Notice under Section 50 NDPS Act was served upon them separately. However, both of them refused to get themselves searched in the presence of a gazetted officer or a Magistrate.
( 2 ) ON search ot the accused, Dinesh Kumar, a bag, consisting of charas, carried by him on his snouldcr. was recovered. The recovered charas. on weighment, turned out to be 1. 440 kg. , out of which 50 gms were taken out for purposes of sample. The sample charas as well the remaining charas were then sealed by the raiding party and the packets consisting of the samples as well as remaining charas. were then sent, after having been sealed, with a RUQQA to me Malkhana with the request to SHO to deposit the sealed packets and the CFSL Form, with the Malkhana after putting his seal on the sealed packets and the CFSL Form. The petitioner is in custody since August, 1995 and the present petition has been made under Section 439 of the Code of Criminal Procedure for the grant of bail.
( 3 ) THE contention of Mr. Dmesh Mathur, Senior Advocate, appearing on behalf of the petitioner is that it is a made-up-affair and the petitioner had been falsely implicated in the case inasmuch as no recovery was made from the petitioner. In any case. according to Mr. Mathur, there was no compliance of the mandatory provisions of the NDPS Act as the documents, irciuding the notice under Section 50 of the Act, the seizure memo and the CFSL Form were all prepared subsequently which. according to him. was apparent from the fact mat the FIR number was mentioned at the top of the said documents which could not have appeared on the documents as they were all allegedly prepared before the recording ot the FIR and the mere mention of the FIR, according to him was sufficient to show that they were prepared after the registration of the FIR.
( 4 ) IT is also his contention mat the raiding party had not joined independent witnesses and this itself was sufficient to the petitioner being enlarged on bail. According to him, report under Section 57 of the Act also had an overwriting. Moreover, according to him, the secret information is alleged to have been received by ASI Dalip Kumar who is also the investigating officer and search was also made by him. This, according to Mr. Mathur, vitiated the entire investigation.
( 5 ) ELABORATING his first contention that all contemporaneously prepared documents, namely, the notice under Section 50 NDPS Act, seizure memo, etc. had the FIR number and the Section of the Act at the top, he has referred to the judgments reported as Pavan Kumar Vs. Delhi Administration 1987 Chandigarh Criminal Cases 585; Nathya Vs. State of Rajasthan 1992 Criminal Law Journal 2342; State of Himachal Pradesh Vs. Sudarshan Kumar 1989 (3) Crimes 608 and Bhim Singh Vs. State 1995 Journal of Criminal Case s 489
( 6 ) WHILE Pavan Kumar Vs. State (Supra) was a case under Section 302 Indian Penal Code, the cases, Nathya Vs. State of Rajasthan (Supra) and State of Himachal Pradesh Vs. Sudarshan Kumar (Supra), were cases under me NDPS Act. In all these cases, criminal appeals were filed after the final judgment in the case and it was held mat i
