The distinction between the applicability of Section 42 and 43 of the NDPS Act in cases of contraband recovery from a vehicle in transit, and the significance of conveying secret information to the superior officer for compliance with Section 42.

JUDGMENT

Gurvinder Singh Gill, J. - The petitioner seeks grant of regular bail in a case registered against him vide FIR No. 294 dated 26.11.2018, at Police Station: Bhawanigarh, District Sangrur, under Section 22 of NDPS Act, 1985 (hereinafter referred to as 'the Act').

2. The case of prosecution is that on 26.11.2018, when ASI Walaiti Ram along with other police officials was present near bridge on Canal Thamman Singh Wala, in connection with patrolling and checking of suspicious persons, then he received secret information at about 5 P.M. to the effect that Sanju Singh and Pushpinder Singh (petitioner) indulged in sale of intoxicants and that they were proceeding towards Sangrur in a white coloured 'Swift' car bearing registration no. PB-13-W-2820 while carrying a large quantity of intoxicating tablets. The information was further to the effect that in case barricading is laid, the aforesaid persons could be caught red-handed.

3. Asi Walaiti Ram immediately sent the aforesaid information to SHO, Police Station, Bhawanigarh, on the basis of which the instant FIR came to be lodged. Thereafter, the said ASI Walaiti Ram along with other police officials laid barricading and they were able to intercept car bearing registration no. PB-13-W-2820 in which the petitioner and co-accused Sanju Singh were travelling. A search of the car led to recovery of 23,500 tablets of Clovidol-100-SR (Tramadol) and another 17,000 tablets of Clovidol-100-SR (Tramadol) apart from 200 vials 100 ml each of Wincerex.

4. The learned counsel for the petitioner has vehemently argued that since it is a case registered pursuant to receipt of secret information pertaining to possession of contraband in a vehicle, the same was required to be immediately taken down in writing in terms of Section 42 of the Act and was required to be conveyed to the officer immediately superior to the person who received the secret information and the same not having been done resulted in violation of mandatory provisions of Section 42 of the Act and as such, the entire recovery stood vitiated and consequently the petitioner deserves to be released on bail. The petitioner places reliance upon Darshan Singh vs. State of Haryana, (2016) 1 RCR(Cri) 333 to hammer forth the aforesaid submission wherein it has been held that lodging of FIR or communication of a copy of FIR to superior officers does not amount to compliance of Section 42 of the Act.

5. Sh. A.S. Sandhu, learned Additional Advocate General, Punjab, on the other hand has opposed the petition while submitting that since intimation by way of a "ruqa" was sent to SHO before ASI Walaiti Ram proceeded to lay barricading and before the car was intercepted, the same would duly satisfy the requirements of Section 42 of the Act pertaining to taking down the information in writing and conveying the same to superior officer. The learned State counsel, while pressing into service a judgement of Constitution Bench of Hon'ble Supreme Court in a case reported as Karnail Singh vs. State of Haryana, (2009) 8 SCC 539 has submitted that non-compliance of Section 42 of the Act, if any, would not ipso-facto vitiate the trial if no prejudice had been caused to the accused.

6. The learned State counsel has further submitted that in any case Section 42 of the Act would not have any application as it is a case of recovery of contraband from a vehicle in transit and which would be covered by Section 43 of the Act and not Section 42 of the Act. It has further been submitted that since it is a case of recovery of a "commercial quantity" of contraband wherein the petitioner was caught red-handed, no case for grant of bail is made out.

7. I have considered rival submissions addressed before this Court. It is a case where pursuant to receipt of secret information, the police intercepted a car in which the petitioner and one Sanju Singh were found travelling and search of which led to recovery of 23,500 tablets of Clovidol-100-SR (Tramadol) and another 17,000