Non-compliance with mandatory statutory provisions, such as the failure to obtain search warrants despite holding prior information, can invalidate the recovery and seizures under the NDPS Act.

JUDGMENT

Sureshwar Thakur, J. (Oral) - Since both the above petitions arise from a common FIR, therefore, both are amenable for a common verdict, being made thereons.

2. Through the instant petitions, cast under Section 439 Cr.P.C., the petitioners crave for indulgence of theirs becoming admitted to regular bail, in respect of FIR bearing No. 321 of 7.8.2021, registered at Police Station Patra, District Patiala, wherein an offence, constituted under Section 22/61/85 of the NDPS Act, 1985 (for short 'Act'), is embodied.

3. Uncontrovertedly, the psychotropic substance(s), carrying a weight which makes them fall within the ambit of commercial quantity thereof, became recovered from a car make Hyundai Elantra of white colour bearing registration No. CH-01-BC-4180. Both the petitioners were occupants of the said car.

4. Uncontrovertedly also, the above seizure from the crime car occurred in the interregnum inter se sunset, and, sunrise. Moreover, undisputedly also with the ruqa, appended with the petitions, as Annexure P-1, hence echoing that it became drawn on 7.8.2021, does imminently enable this Court, to draw a firm inference, that the apposite seizure as occurring at the crime site, was a sequel of a prior information, being available with the police.

5. The legal sequel thereof, is that, since Section 42 of the Act, provisions whereof stand extracted hereinafter, especially sub-Section (1) of the Act, thereof, makes it incumbent, upon the police to, in the event of its holding prior information, as the police evidently held in the extant case, qua the offenders concerned, allegedly carrying in their conscious, and, exclusive possession, any narcotic drug or psychotropic substance, and, it becoming carried through concealment(s) thereof in a building, conveyance or enclosed place, thereupon, a statutory interdiction becoming cast, upon the police, against the makings of the apposite entry into the building, conveyance or enclosed place, rather at the above phase, unless the police, then hold the validly issued search warrants, and/or, authorization(s), rather from the empowered authority concerned.

42. Power of entry, search, seizure and arrest without warrant or authorisation. ?

(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset, ?

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under thi