IMPORTANT POINT
Compliance with statutory requirements under the NDPS Act should be determined at the trial stage, and the burden of proof lies with the prosecution.

JUDGMENT

1. The applicant vide the present application implores this Court to exercise its special powers under Section 439 of the Code of Criminal Procedure, 1973 [CrPC] read with Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 [NDPS Act] to grant regular bail in FIR No.221/2020 dated 10.07.2020 under Section(s) 20/25/29, NDPS at PS: Madhu Vihar, Delhi.

2. As per FIR, information was received from a confidential informant [CI], that the applicant and one Imran@Doctor will be handing over a large consignment of Ganja from Vishakhapatnam, Andhra Pradesh in Madhu Vihar, Delhi around 12:00 PM on 09.07.2020. The same was communicated to ACP Madhu Vihar, who ordered a raid to intercept the aforesaid consignment.

3. Accordingly, a team was formed and dispatched to the place of occurrence at 11:20 PM which waited for the exchange to happen. At about 12:10 PM, a Silver Swift Dezire [DL-01-CR-0648] stopped and the CI informed that out of the two male occupants in the car, the one in Yellow T-shirt is Mr. Praveen Khatri, the applicant herein and the other one in White shirt is Imran@Doctor. SI Ram Niranjan Pathak knocked on the window-glass but since the occupant(s) denied opening the door or lowering the window, ASI Shailesh was constrained to break the driver side window glass and took the keys.

4. Upon inquiring, the occupant(s) revealed their names to be Mr. Praveen Khatri and Imran. Thereafter, the SI first informed both the occupants about the information received and then served a notice under Section 50, NDPS on both of them. However, as both of them waived their right of being searched by the nearest Gazetted Officer/Magistrate, the SI, at 12:55 PM, requested, Mr. Vijay Kumar, the concerned ACP, Madhu Vihar, to reach at the place of incidence to supervise the search and seizure of both the accused persons.

5. On reaching the place of occurrence at about 01:25 PM on 10.09.2020, the ACP directed the SI to conduct the search and seizure operations. Though no ganja or packet of ganja was recovered from the person of the accused, however, upon conducting a search of the car, 3 white plastic kattas from the trunk and 2 white plastic kattas from the rear seat were recovered. All the said 5 white plastic kattas were tied with a twine. Upon opening the said kattas, material resembling ganja was found and the kattas were thus marked and weighed `A' (weighing 18 Kgs), `B' (weighing 17 Kgs), `C' (weighing 19 Kgs), `D' (weighing 17 Kgs) and `E' (weighing 19 Kgs). In all, the 5 kattas led to seizure of 90 Kgs of ganja.

6. Thereupon, SI Pathak prepared two samples of 1 kg each from all five kattas and packeted them in transparent plastic bags, sewed them in white cloth and labelled them `A-1', `A-2', `B-1', `B-2' and so forth. Not only that, FSL Forms for the samples prepared, were also filled and sealed.

7. Of the various grounds raised by the learned counsel for the applicant in his pleadings, the learned counsel has primarily chosen to argue that since the raid conducted on the intervening night of 09.07.2020 and 10.07.2020 was without authorisation from a Gazetted Officer of the Department, the essential requirement of Section 41(2) of the NDPS Act was not met and the prosecution also failed to comply with the mandatory requirements of Section 42 of the NDPS Act as the `ground of belief' was not recorded. In support of his argument, the learned counsel has drawn attention of this Court to State of Punjab v. Baladev Singh, (1999)6 SCC 172 (paragraph 17).

8. Learned counsel for the applicant also submits that the notice served under Section 50 of the NDPS Act is defective as the word `nearest' is missing and the officer who gave the notice did not conduct the personal search. For this, the learned counsel for the applicant places reliance upon State of Rajasthan vs. Parmanand and Anr., (2014)5 SCC 345 (paragraph 19).

9. Notice was issued and the Status Report was called for. Nominal Roll was also requisitioned from the concern