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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

MCRC No. 2397 of 2021

Yudhisthir Mehar S/o Gahadu Mehar, Aged About 47 Years, R/o -village

Chichaiguda, Thana Junagarh, District -Kalahandi, (Odisha).

---- Applicant

Versus

State of Chhattisgarh, Through Station House Officer, Police Station

-Bagbahara, District -Mahasamund, Chhattisgarh.

--- Respondent

For Applicant

: Mr. Vikash Pradhan, Advocate.

For Respondent-State

: Mr. Rakesh Sahu, PL.

Hon'ble Shri Justice Parth Prateem Sahu

Order on Board

05/04/2021

Heard.

1. This is first bail application filed under Section 439 of the Code of Criminal

Procedure for grant of regular bail to applicant, who has been arrested in

connection with Crime No.277/2020, registered at Police Station

-Bagbahara, District -Mahasamund, (C.G), for the offence under Section

20 (B) of Narcotic Drugs and Psychotropic Substances Act, 1985

(hereinafter referred to as 'NDPS Act').

2. Case of the prosecution, in brief, is that on 15.12.2020, Inspector of Police

Station Bagbahara was checking the vehicles at N.H353 Main Road

Pithowra Chowk, he stopped one motorcycle, on which three persons were

travelling namely Yudhisthir Mehar (present applicant), Bhuraram Megwal

and Bhagirathi Ram Bishnoi, carrying two bags with them. During search

total 25 kg contraband (Ganja) was recovered from the said bags in their

possession in presence of witnesses. Based upon which they are arrested

and aforementioned crime is registered against them.

3. Learned counsel for the applicant submits that Investigating Officer who

investigated the crime, is not competent to investigate the offence under

Section 20 of the NDPS Act. As per amended notification issued on

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30.10.2019, amending earlier notification dated 14.11.1985, Investigating

Officer in such cases should be above the rank of Inspector, whereas, in

the instant case, Investigating Officer is an Inspector, hence, entire

investigation is vitiated. In support of this contention, he places his reliance

on the judgment passed by Hon'ble Supreme Court in case of Tofan

Singh vs. State of Tamil Nadu reported in (2013) 16 SCC 31. He further

submits that there is non-compliance of provisions of Section 50 of NDPS

Act, as the search of applicant has not been done before the Gazetted

Officer or Magistrate, but Police Officers themselves have conducted

search of applicant and other co-accused persons. In support of this

contention, he places his reliance on judgment dated 05.09.2018 passed

by Hon'ble Supreme Court in CRA/459/2017, judgment dated 20.08.2019

passed in CRA/1206/2013 & judgment dated 29.10.2010 passed in

CRA/943/2005. As there is non-compliance of mandatory provisions of

NDPS Act, investigation itself is vitiated. Hence, he may be released on

regular bail.

4. On the other hand, learned State Counsel opposes the submissions made

by learned counsel for applicant and submits that Notification dated

30.10.2019 relied upon by learned counsel for the applicant is not

applicable in this case because said notification deals with the powers of

the officers of Central Bureau of Narcotics, Junior Intelligence Officer in

Narcotics Control Bureau, Central Board of Indirect Taxes & Customs,

Directorate of Revenue Intelligence, Central Economics Intelligence

Bureau and not with the powers of State Police. The powers of State

Police under Section 42 of NDPS Act are notified on 14.11.1985, wherein

for the Police Department the Superintendent of Police, Additional

Superintendent of Police, Deputy Superintendent of Police, Assistant

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Superintendent of Police, Inspector, Sub-Inspector, Asst Sub Inspector

have been notified within their respective jurisdiction, hence, submission

made by learned counsel for the applicant that Investigating Officer who

investigated the crime is not c