Mere GD Entry For Recording 'Reason For Search', 'Intimation To Senior' Not Sufficient Compliance Of S.42 NDPS Act

The Calcutta High Court’s Circuit Bench at Jalpaiguri recently granted bail to an accused under the NDPS Act, who had been charged with possession of commercial quantities of YABA Tablets.

At the outset, a division bench of Justice Moushumi Bhattacharya and Justice Prasenjit Biswas observed that the commercial truck in which the contraband was being transported being owned by an individual would not be a 'public place' and hence rigour of Section 42 NDPS Act would apply.

Section 42(1) casts a mandate on the designated officer to record his “reason to believe” with reference to personal knowledge or information received, before entering and searching. Section 42(2) continues the statutory mandate on the officer to intimate his immediate official superior the information recorded in writing and the grounds for his belief. 

Prosecution claimed the alleged secret information received by the prosecution was written down vide a General Diary Entry by the Special Task Force which was subsequently intimated to the superior officer.

Question before the Court was whether there has been due compliance of the provisions. Answering this in the negative, the bench held,

The alleged secret information received by the prosecution was written down vide a General Diary Entry by the Special Task Force which was subsequently intimated to the superior officer. We are, however, of the view that a mere GDE entry does not amount to due compliance of Section 42(1). We also rely on Boota Singh (Supra) to come to the conclusion that non-compliance of Section 42 is not permissible in law. We are of the view that the report under Section 42(1) must be in terms of a clear recorded statement in writing by the authorized officer under Section 42(1) and must not be contained in a document which is closed from public view. Our view is strengthened by the fact that the NDPS Act is a special legislation entailing several statutory restrictions against grant of relief. Hence, the obligation cast on the officers must strictly be construed as also the rights available to an accused under the Act which must also be given their due weightage.

In the present case, the accused was apprehended by the NCB on the basis of ‘secret information’, that he was on board a truck allegedly possessing commercial quantities of YABA Tablets.

Petitioners argued that truck in instant case was a Private/Commercial vehicle which would not fall within Section 43 of the NDPS Act since the same would only cover modes of transportation which were “accessible to the public.” To buttress their submissions, the petitioners relied on the Supreme Court decision in Boota Singh v. State of Punjab.

It was argued that the investigating officer would be obligated to record the secret information and grounds for his suspicion before commencing a search, seizure and arrest from a private place as mandated by Section 42 (1) of NDPS Act.

Petitioners argued that the aforesaid threshold in Section 42(1) could never be met by merely recording the secret information in form of a General Diary, since the same would not be permissible within the statute.

On the other hand, the State argued that Section 42 had been duly complied with by recording the grounds of suspicion to effect search & seizure, which had been affected under the law and with the knowledge of the jurisdictional Magistrate.

In taking note of the submissions of both parties, the Court looked at whether the power to effect seizure and arrest in a public place or in public conveyance, u/s 43 of the NDPS Act, would apply to the present case.

The Bench observed that while the petitioner’s vehicle was for commercial purposes, it remained under individual ownership, not meant for public use or transportation and thus, section 42’s mandate would apply to the present case, but the police had not complied with the same.

It held:

Considering the particulars of the document placed before us with regard to the registration details of the vehicle, we are of the view that the vehicle from which the narcotic substance was recovered would not fall under the term “public place” as defined in the Explanation to Section 43 of the NDPS Act.

Section 42 of the NDPS Act relates to the power of entry, search, seizure and arrest without warrant or authorization. Section 42(1) casts a mandate on the designated officer to record his “reason to believe” with reference to personal knowledge or information received and to take down in writing that any narcotic drug or psychotropic substance in respect of which an offence punishable under the Act has been committed is liable for seizure and is kept concealed in any building, conveyance or enclosed place. The officer must record the reasons for such belief before entering and searching any such building conveyance or place between sunrise and sunset. Since we have already formed an opinion on the non-compliance of the mandate of Section 42(1) and (2) of the Act…the prayer for bail is allowed.

Case: Abdul Rakib v The State of West Bengal

Coram: Justice Moushumi Bhattacharya and Justice Prasenjit Biswas

Citaiton: 2023 LiveLaw (Cal) 249

Appearances: For the petitioners- Ashima Mandla, Mandakini Singh, Surya Pratap Singh and Deborshi Dhar

For the respondents- Mr. Aditi Sankar Chakraborty, Mr. Arjun Chowdhury

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