Compliance with procedural requirements under the NDPS Act is mandatory, and failure to comply may entitle the accused to acquittal, but substantial compliance is a matter for trial.

JUDGMENT :

NEENA BANSAL KRISHNA, J.

1. The Bail Petition under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as “BNSS, 2023”) has been filed on behalf of the Petitioner seeking Regular Bail in FIR No. 151/2022 under Sections 21/27A/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “NDPS Act, 1985”) registered at Police Station Crime Branch, Delhi.

2. It is submitted that the Petitioner was arrested on 23.07.2022 and since then he is in Judicial Custody.

3. According to the prosecution, on 22.07.2022, S.I. Naresh Kumar along with his team, had gone to District Centre, Dwarka to collect the information regarding purchase and sale of drugs. He at about 01:45 A.M., met a secret informer informed him that Applicant Shammi @ Shanni, resident of Amritsar, Punjab, presently living in Gali No. 15, Mahavir Enclave, Part-II, Delhi was about to go to Punjab with a huge quantity of Heroin between 02:30 A.M. to 03:30 A.M., and can be apprehended with Heroin. The information was conveyed to Assistant Commissioner of Police (ACP) who ordered to take action accordingly. S.I. Naresh apprehended the Petitioner and recovered 500 grams of Heroin and Rs. 22,00,000/- in cash from his bag.

4. On completion of investigation, the Chargesheet under Sections 21/27A/29 of NDPS Act, 1985 was filed before the learned Trial Court which is pending adjudication.

5. The Applicant moved a Bail Application under Section 483 of BNSS, 2023 before the learned Additional Sessions Judge who dismissed it vide Order dated 21.05.2024.

6. The Bail is sought by the Petitioner on the ground that he has nothing to do with the commission of alleged offence and he has been falsely implicated in this case.

7. Inspector Jasbir Singh, who received the secret information, did not convey it to ACP himself, but the information was conveyed by the Head Constable Nihal Singh, Duty Officer over phone. It is asserted that there is non-compliance of Section 42 of NDPS Act, 1985 which is mandatory and vitiates the alleged recovery. In support of this assertion, reliance has been placed on the decision in Jagroop Singh @ Ceeta vs. Directorate of Revenue Intelligence, 2016 (3) JCC (Narcotics) 165, wherein it was observed that if the secret information is recorded by the concerned Official and is not placed before the immediate superior, it amounts to non-compliance of Section 42 of NDPS Act, 1985 thereby entitling the accused to acquittal.

8. It is further asserted that ACP without making any enquiry from the secret informer and without any discussion with Inspector Jasbir Singh, empowered him to take action, which again is in violation of Section 42 of NDPS Act, 1985. The information conveyed by Head Constable Nihal Singh to ACP, was only hearsay. In support of his assertion, the counsel for the Petitioner has placed reliance on the decision in State of Rajasthan vs. Jag Raj Singh @ Hansa, 2016 (3) JCC (Narcotics) 153.

9. Similar observations have been made in Sarija Banu Alias Janarthani Alias Janani and Another vs. State through Inspector of Police , (2004) 12 SCC 266 and in Kmaruddin vs. State (NCT of Delhi) , 2023 (1) JCC 387 (Delhi) .

10. Furthermore, it is asserted that no independent witness from the neighbourhood joined the police at the time of alleged recovery. The site plan depicting the Petitioner is totally defective as he was never apprehended at the spot, but was lifted from his house and was forced to sign some blank papers.

11. It is further asserted that there is non-compliance of mandatory provision of Section 50 of NDPS Act, 1985 as no public witness was served or made to join as a witness at the time of serving Notice under Section 50 of NDPS Act, 1985. There was no proper compliance of Section 50 of NDPS Act, 1985 and it was defective. In support of his assertion, learned counsel for the Petitioner has placed reliance on the decision in Ali Mustaffa Abdul Rahman Moosa vs. State of Kerala, (1994) 6 SC