NDPS Act | Non-Compliance Of Section 41 No Ground For Granting Bail, Rigours Of Section 37 Still Have To Be Met : Delhi High Court

The Delhi High Court has said that the question whether non-compliance of Section 41 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in the process of arrest, search and seizure vitiates the trial is to be seen at the stage of trial and cannot have any bearing on grant of bail. 

The court said though the authorities cannot ignore statutory rigours of the provisions especially when it causes serious prejudice to the accused, the apex court in Karnail Singh v. State of Haryana has said the provision of Section 41 is a discretionary measure. The Supreme Court in the 2009 ruling had said "these provisions should be taken as a discretionary measure which should check the misuse of the Act rather than providing an escape to the hardened drug peddlers."

Justice Jasmeet Singh further observed that non-compliance of Section 41 of the enactment will not absolve the accused from the rigours of Section 37, which imposes strict conditions on grant of bail.

Section 37 states that bail should not be granted to an accused unless the accused is able to satisfy twin conditions i.e. reasonable ground for believing that the accused is not guilty of such an offence and that the accused would not commit an offence or is not likely to commit an offence if granted bail.

"There is a bar imposed by Section 37 which cannot be ignored or superceded by a prima facie non-compliance of the discretionary provision i.e., section 41," Justice Singh observed in a ruling passed on November 18.

The court made the observations while denying bail to one Hardeep Singh, who was booked for offences under sections 15, 25, 29, 61 and 85 NDPS Act by Tilak Nagar police in January 2020.

Singh, along with his brother, was found in possession of a total 58.5 kgs of Doda-Post. It was his case that there was a non-compliance of Section 41 of the Act.

The counsel representing the accused submitted when Singh and his brother were found by the police at the time of patrolling and after the bags allegedly containing the contraband was checked, the SI informed the Inspector telephonically who gave orders for taking appropriate action. It was the SI who served the accused with a notice under Section 50 of NDPS Act, the court was told.

Contending Inspector is not a Gazetted Officer nor the authority competent to grant authorization as per Section 41 of the NDPS Act, the counsel said the SI should have informed the Inspector and the ACP prior to opening of the Katta and only after due authorization, the process of search and seizure had to be followed.

It was also argued that there was an irregularity while issuing notice under Section 50 of the NDPS Act as the officer who served it was not authorized as per Sections 41, 42 or 43 of the NDPS Act.

Observing that an Inspector is not a Gazetted Officer i.e. not the authority to grant authorization as per section 41 of the NDPS Act, the court said:

"Neither the ACP i.e., the Gazetted Officer nor any Magistrate as per the scope of Section 41 ever authorized any officer for the purpose of search, seizure and arrest in the present case in accordance with the secret information as allegedly given."

The court said while prima facie there was a non-compliance of Section 41, the same cannot have a bearing on granting bail.

Justice Singh also said that Section 50, which provides for conditions under which search of a person is to be conducted, does not extend to the recovery made from the car.

It said that Section 50 was duly complied with as the chargesheet clearly states that the personal search was conducted in the presence of ACP.

"Since while searching the person of the applicant, the ACP was present, the provisions of Section 50 stand complied with. I am of the view that since the mandatory condition of section 50 has been complied with, the bar imposed by section 37 needs to be met by applicant," the court said.

Furthermore, the court said that even if it is assumed that non-compliance of Section 41 will vitiate the trial, the rigours of Section 37 have to be met as the case involves commercial quantity of narcotics drugs. 

"The total recovery of the alleged substance was 58.500 Kgs (weighed on weighing machine kept in the IO kit) found in three kattas weighing 17.500 kg, 22 kg & 19 kg respectively. The quantity recovered from the accused persons was of commercial quantity," it noted. 

Denying bail to the accused, the court said: "I am not satisfied that there are reasonable grounds for believing that the applicants are not guilty of such offence and that they are not likely to commit any offence while on bail. Having considered all the relevant aspects, I am of the view that the applicants cannot be enlarged on bail." 

In a related development, the court on November 18, while granting bail to an accused, said any recovery made without compliance of Section 50 of the NDPS Act "itself cannot be sustained" and no reliance can be placed on it.

Title: HARDEEP SINGH v. THE STATE

Citation: 2022 LiveLaw (Del) 1124

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