The actions of Gazetted Officers and the reporting requirements under Section 42(2) were central to the court's decision.

JUDGMENT :

RAVINDRA MAITHANI, J.

1. Applicant Bhajan Singh is in judicial custody in FIR No. 0087 of 2022, under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the Act”) Police Station Kapkot, District Bageshwar. He has sought his release on bail.

2. Heard learned counsel for the applicant and perused the record.

3. According to the FIR, on 16.11.2022, 3.022 Kgs charas was recovered from the possession of the applicant, which he was carrying in a bag. In fact, the FIR records that when the applicant was intercepted, he revealed that he had charas in his bag. Thereafter, the Gazetted Officer of Police was called at the place and search was made under the orders of the Gazetted Officer of the Police.

4. Learned counsel for the applicant would submit that there is non-compliance of Section 42 of the Act; prior information was required to be recorded, thereafter, information ought to have been sent, in view of Section 42(2) of the Act. In support of his contention, learned counsel for the applicant placed reliance on the principles of law, as laid down in the cases of Khushal Singh vs. State of Uttarakhand in Criminal Appeal No. 189 of 2008, Thankachan vs. State of Kerala in Cr. Appeal No. 108 of 2001, Abdul Rashid Ibrahim Mansuri vs. State of Gujarat in Criminal Appeal No. 78 of 1992, Beckodan Abdul Rahiman vs. State of Kerala in Criminal Appeal No. 619 of 1997, State of Rajasthan vs. Shanti in Criminal Appeal No. 957 of 2003 and Koluttumottil Razak vs. State of Kerala in Cr. Appeal No. 1016/1999. In all these cases, under the facts and circumstances of those cases, it was held that there was non-compliance of Section 42 of the Act.

5. In addition to it, learned counsel for the applicant would also refer to the statements of PW-10, Sub Inspector Prahlad Singh and PW-5, Sub Inspector Kundan Singh Rautela. Reference has been made to the statement of PW-10, Sub Inspector Prahlad Singh to argue that inventory was not prepared before the Magistrate. Reference to the statement of PW-5, Sub Inspector Kundan Singh Rautela, has been made to argue that, in fact, he was not an officer empowered under the provisions of the Act to search and seize.

6. Learned State Counsel would submit that the statements of PW-5 and PW-10, as placed at the time of hearing, were not placed earlier. Therefore, she cannot comment on it. She would submit that it is not a case of non-compliance of Section 42 of the Act because the search was made under the orders of the Gazetted Officer of Police. She would also submit that in the instant case, there is no need for compliance of Section 50 of the Act, because the recovery was made from a bag.

7. The question of inventory and its implication would find deliberation at trial based on the evidence that may be adduced. Insofar as the statement of PW-5 is concerned, in answer to Question No. 39, he has stated that he is not entitled for search under the provisions of the Act. This he has stated in continuation to the sentence when he said that the applicant was told of his right to be searched before a Gazetted Officer or Magistrate.

8. In the instant case, recovery has been made from a bag. It is not from personal search. It excludes the applicability of Section 50 of the Act. Insofar as application of Section 42 of the Act is concerned, in the case of M. Prabhulal vs. Assistant Director, Directorate of Revenue Intelligence, (2003) 8 SCC 449, the Hon’ble Supreme Court has categorically held that “the High Court is, thus, right in coming to the conclusion that since the Gazetted Officer himself conducted the search, arrested the accused and seized the contraband, he was acting under Section and, therefore, it was not necessary to comply with Section 42.”

9. In fact, in the case of State of Haryana vs. Jarnail Singh and Others, (2004) 5 SCC 188, in Para 10, the Hon’ble Supreme Court, while relying on the principles of law, as laid down in the case of M. Prabhulal (supra), observed as follows:

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