Amit Arora vs State of Punjab - 2023 Supreme(P&H) 1903

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(P&H) 1903

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
NAMIT KUMAR, J.
Amit Arora – Petitioner
Versus
State of Punjab – Respondent
CRM-M No.46900 of 2021 (O&M)
Decided On : 22-02-2023

Advocates Appeared:
For the Petitioner: Mr. Sarju Puri.
For the Respondent: Mr. Anup Singh, AAG, Punjab.

Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 42 - Bail application under repeat offence - Non-compliance with mandatory provisions of search and seizure under Section 42 - Total non-compliance of recording and forwarding information leads to vitiated conviction. (Paras 5, 21, and 23)

(B) The applicant was a licensed chemist accused of dealing with contraband substances; arrested with substantial quantities of narcotics; claimed false implication and procedural violations by the authorities. (Paras 4, 5, and 17)

Facts of the case:
Applicant, a chemist, was arrested with significant quantities of controlled substances; claimed no prior complaints against him; argued illegal search and seizure due to violations of Section 42 of the NDPS Act. (Paras 4-5)

Findings of Court:
The mandatory provisions of Section 42 of the NDPS Act were not complied with, justifying the grant of bail on the grounds of prolonged custody and procedural errors, ultimately leading to the decision to release the applicant. (Paras 21, 22, and 23)

Issues: Whether the mandatory provisions of Section 42 were complied with, and the implications of non-compliance on the bail application. (Paras 21-23)

Ratio Decidendi: Distinction between substantial and total compliance with Section 42; total non-compliance cannot be accepted, reinforcing the principle that procedural safeguards must be observed to avoid miscarriage of justice. (Paras 21-24)

Result: Petition for bail granted.

Table of Content
1. application for recording challan accepted. (Para 1 , 2)
2. petition for bail regarding drug-related charges. (Para 3 , 4)
3. defendant claims false implication and failure to adhere to ndps act provisions. (Para 5 , 6 , 7 , 8)
4. state's counter-arguments regarding possession of commercial quantities. (Para 9 , 10)
5. legal framework for searches under section 42 of ndps act. (Para 11)
6. importance of compliance with section 42 of ndps act. (Para 12 , 13 , 20)
7. judicial interpretation on non-compliance affecting trials. (Para 14 , 15 , 18 , 19)
8. concessions and precedent on bail due to long custody. (Para 16 , 17 , 22)
9. court orders bail based on various factors including custody period. (Para 23 , 24)
10. final order and conditions of bail. (Para 25 , 26 , 27)

JUDGMENT :

(Namit Kumar, J.)

CRM-4806 of 2022

1. This application has been filed by the applicant-petitioner under Section 482 Cr.P.C. for placing on record copy of challan under Section 173(2) Cr.P.C. along with consent memo as Annexures P4 and P5.

2. In view of the averments made in the application, same is allowed. Annexures P4 and P5 are taken on record subject to all just exceptions.

CRM-M-46900 of 2021

3. This petition has been filed by the petitioner under Section 439 Cr.P.C. seeking regular bail in case FIR No.110 dated 26.07.2021 under Sections 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, registered at Police Station Special Task Force, District STF Wing.

4. Brief facts of the case are that a secret information was received that petitioner-Amit Arora, who is running a chemist shop in the name of Kashish Medicose alongwith his friend Naveen Saini is involved in dealing with prohibited contraband and intoxicated tablets. Both, petitioner-Amit Arora and Naveen saini were coming on their car Alto bearing No.PB-10-GB-9198 as they are traveling to supply the same to their customers. FIR was accordingly registered. On 25.07.2021 at around 10 PM both petitioner-Amit Arora and Naveen Saini were apprehended. From their possession 700 tablets of Roldal (containing Tramadol), 100 tablets Clovidol (containing Tramadol) and 570 capsules of SPASMO-A VON PLUS were recovered alongwith Rs.1,40,000/- currency notes and ALTO car bearing No.PB-10-GB-9198 which is in the ownership of petitioner-Amit Arora. Subsequently from the information supplied by them, another accused Sushil Kumar was arrested and from his possession voluminous recovery of 795 strips of SPASMO-A VON PLUS capsules total 6360 capsules, 300 strips of SPASCORE-VON PLUS capsules total 2400 capsules, 218 strips of TAMWEL tablets total 2180 tablets, 90 strips of ALPRASAFE .05 tablets total 900 tablets, 180 strips of ROLDAL 100-SR tablets total 1800 tablets alongwith drug money of Rs.2,48,000/- was made.

5. Learned counsel for the petitioner submitted that the petitioner is a licenced chemist and is running his shop under the name and style of `Kashish Medicose' for the last more than 15 years and there is not even a single complaint against him till date. He further submitted that the petitioner has been falsely implicated in the present case and he is in custody since 25.07.2021. He further submitted that mandatory provisions of Section 42 of the NDPS Act have not been complied with by the police as search and seizure are completely vitiated as per Section 42 of the NDPS Act. He further submitted that investigation in the present case is complete; challan has been presented; charges have been framed; out of 25 prosecution witnesses, none has been examined as yet; the case is now fixed for prosecution evidence on 24.03.2023 and the trial is likely to take a considerable time to conclude. He further submitted that the petitioner is not involved in any other case. No communication of secret information received by ASI Munish Kumar was sent to the superior officer within 72 hours an