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2000 Supreme(P&H) 272
PUNJAB & HARYANA HIGH COURT
K.S.Kumaran, J.
Gurdarshan Singh
Versus
State Of Haryana
Criminal Miscellaneous No. 40499 of 1999,
Decided On : MARCH 6, 2000
Non-compliance with Sec. 42 of the NDPS Act and conducting search and recovery between sunset and sunrise can lead to entitlement to bail.
Headnote:
NDPS Act - Bail - Compliance with Sec. 42 - Search and recovery made between sunset and sunrise
Fact of the Case:
The petitioner seeks bail on the grounds of non-compliance with Sec. 42 of the NDPS Act, as the secret information was not recorded before the search and recovery, and the intimation to lodge the FIR was sent after the alleged search and recovery was made between sunset and sunrise.
Finding of the Court:
The court, considering the judgment of the Division Bench of the Court, held that the petitioner is entitled to be released on bail without expressing any opinion on the merits of the case.
Issues: Non-compliance with Sec. 42 of the NDPS Act, search and recovery made between sunset and sunrise
Ratio Decidendi: The court's decision was influenced by the non-compliance with Sec. 42 of the NDPS Act and the timing of the search and recovery, as per the judgment of the Division Bench of the Court.
Final Decision: The petition is allowed, and the petitioner is ordered to be released on bail.
Key Points: - The petitioner is entitled to be released on bail due to non-compliance with Sec. 42 of the NDPS Act related to timing of the search and recovery between sunset and sunrise (!) . - The court did not express any opinion on the merits of the case and granted bail to the petitioner (!) . - The decision references: reliance on a Division Bench judgment in Pawan Kumar v. State of Punjab and contrasts with Gujarat High Court judgments (!) (!) . - The petition was allowed and the petitioner was ordered to be released on bail upon furnishing sufficient surety to the satisfaction of the C.J.M., Kaithal (!) . - The core issues considered were non-compliance with Sec. 42 of the NDPS Act and the timing of the search/recovery (!) .
What is the entitlement to bail for non-compliance with Sec. 42 of the NDPS Act concerning search and recovery conducted between sunset and sunrise?
What is the court's position on bail regardless of merits when Sec. 42 of the NDPS Act is alleged to be violated?
K. S. Kumaran, J.
1. Heard counsel for both the sides.
2. The learned counsel for the petitioner contends that the petitioner is entitled to be released on bail on two grounds. He contends that even as per the F. I. R. a secret information was received but that was not recorded before undertaking the search and therefore there is non -compliance of the provisions of Sec.42 of the NDPS Act. The other ground urged by the learned counsel for the petitioner is that even the intimation to lodge the FIR (after the alleged search and recovery was sent to the Police Station at 5 a. m. and therefore it is evident that the alleged search and recovery was made between sunset and sunrise, which was also aground for the police officer to have recorded the reasons for effecting the search without getting a search warrant. He therefore, contends that because of this also Sec.42 of the NDPS Act has been violated. In this connection he relies upon a judgment of Division Bench of this Court in Pawan Kumar V/s. State of Punjab1. As against this the learned counsel for the State relied upon a judgment of Division Bench of the Gujarat High Court in Aslambhai lbrahimbhai Memon and another V/s. The State of Gujarat2.
3. But keeping in view the judgment of the Division Bench of this Court (supra), I am of the view that the petitioner is entitled to be released on bail.
4. In these circumstances, without meaning to express any opinion on the merits of the case, the petition is allowed. The petitioner is ordered to be released on bail on his furnishing sufficient surety to the satisfaction of C. J. M. , Kaithal. Petition allowed.
