NDPS Act | Violation Of Mandatory Provisions For Seizure Need Not Be Looked Into In Bail Proceedings Unless Glaring Irregularity Emerges: Delhi HC

The Delhi High Court has observed that the effect of non-compliance of any mandatory provision under the Narcotic Drugs and Psychotropic Substances Act, 1985 by the Investigating Officer or any irregularity or illegality committed at the time of making of the seizure memo is essentially a matter of trial and cannot be looked into at the stage of bail, unless there is any glaring irregularity which will make the seizure itself illegal.

Justice Swarana Kanta Sharma made the observation while denying bail to one Gurjeet Singh in an FIR registered under sec. 18 and 25 of NDPS Act.

Singh was found in possession of two polybags containing black colour material, later found to be "afeem". The substance was found to be 750 grams (one polybag containing 400 gms and other 350 gms). On search of almirah in Singh's house, a cash amount of Rs. 2,52,15,350 was found.

The counsel appearing for the petitioner stated that it was not a case of recovery of commercial quantity of opium so as to attract the bar under sec. 37 of NDPS Act. 

It was also argued that the quantity recovered from the petitioner was intermediate quantity of 750 grams of opium and that he was falsely implicated in the matter. The counsel also argued that the non-compliance of sec. 42 (Power of entry, search, seizure and arrest without warrant or authorisation) of NDPS Act also entitles the accused to bail.

On the other hand, State had opposed the bail plea arguing that Singh was caught red handed in possession of 750 grams of opium.

While the Court said that the quantity of opium recovered from Singh was intermediate and did not attract bar under sec. 37 of NDPS Act, it however noted that 750 grams of opium had been kept in Singh's house, thereby prima facie indicating that he was using his premises also for commission of offence.

"The effect of non-compliance, if any, of any mandatory provision by the Investigating Officer, any irregularity or illegality committed at the time of making of the seizure memo, etc. pointed out painstakingly by the learned counsel is also essentially a matter of trial and cannot be looked into in detail at this stage for grant of bail unless there is any glaring irregularity which will make the seizure itself illegal," the Court said.

It added "The menace of drugs spoiling the lives and futures of future generations has to be dealt with strict and heavy hand. The object of an enactment also has to be kept in mind while dealing with any offence under that Act. In the present case, the Court has taken note of the fact that recovery of unaccounted cash of Rs.2,52,15,350/- was made from the house of the accused, the opium was also recovered from the fridge of the house of accused for which he could give no explanation."

The Court also took note of the fact that charges were yet to be framed in the matter and witnesses were yet to be examined.

"It is not a case where the accused has been in custody for a long duration as to weigh in the mind of the court that the trial is taking long to conclude, which was another argument of the learned counsel for the applicant," the Court said.

The plea was accordingly dismissed.

Case Title: GURJEET SINGH v. STATE OF NCT OF DELHI

Citation: 2022 LiveLaw (Del) 855

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