High Court of H.P.1

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

Cr.MP(M) No. 1392 of 2020

Reserved on: 28.8.2020

Decided on: 02.09.2020

Sanjay Kumar …...Petitioner.

Versus

State of H.P. .....Respondent.

Coram

The Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge.

Whether approved for reporting?

1

Yes.

For the petitioner : Mr. Deepak Kaushal, Advocate.

For the respondent : Mr. Anil Jaswal, Addl. Advocate

General with Mr. Manoj Bagga,

Assistant Advocate General.

ASI Gian Singh, I/O Police Station,

Paonta Sahib, District Sirmour, H.P. in

person.

Jyotsna Rewal Dua, Judge

Petitioner has been linked with recovery of 3541

number of intoxicating capsules containing psychotropic

substance Tramadol and therefore, is an accused in FIR No.

50/2020 dated 16.4.2020 registered under Sections 21 and 29 of

Narcotic Drugs & Psychotropic Substance Act (in short NDPS Act)

at Police Station, Paonta Sahib, District Sirmour.

2. Instant petition for bail under Section 439 of Code of

Criminal Procedure has been preferred on following grounds:

1

Whether the reporters of the local papers may be allowed to see the

Judgment?

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a) Petitioner is not involved with the recovery of

intoxicating capsules.

b) Provisions of Section 42 of NDPS Act were not

complied with.

c) Investigating Officer and the complainant in the FIR

in question was the same person.

The later two grounds though have not been taken in

the pleadings, however, they were raised by learned Counsel for

the petitioner during hearing of the case.

3. Facts: The prosecution case is that:-

3(i) On 16.4.2020 a police party comprising of HC Arun

Kumar, C. Vipin, PC Om Parkash along with C. Dinesh was on

patrolling duty vide Rapat No. 38 in the area under jurisdiction of

Police Station, Paonta Sahib. At around 6:15 P.M., while the

patrolling party was at Vishwa Karma chowk, HC Arun Kumar

received a secret but reliable information that one Sanjay Kumar

(bail petitioner) is involved in illegal sale of intoxicating capsules

and on his demand, one Salman Khan was bringing huge

quantity of these capsules from Mirzapur, Uttrakhand in the

cabin of truck No. HP 17C-0903. HC Arun Kumar was further

informed that the truck was about to enter Paonta Sahib border

and its search at that moment itself can result into recovery of

large quantity of intoxicating capsules.

3(ii) HC Arun Kumar reduced the above information in

writing in accordance with the provisions of Section 42(2) of

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NDPS Act. The written information so recorded was sent by HC

Arun Kumar to Sub Divisional Police Officer, Police Station,

Paonta Sahib through C. Vipin. Whereafter HC Arun Kumar along

with other officials of patrolling party reached Yamuna barrier.

HC Krishan Singh Bhandari, who was discharging his duties at

barrier was also involved in the raiding party alongwith Dr.

Himanshu Kaushish and Pradeep Kumar- officials of Health

department deployed at Yamuna barrier on account of COVID-19

pandemic duty.

3(iii) The raiding party kept watch for the afore numbered

truck. At around 6:38 P.M., the truck in question reached Yamuna

barrier. It was signaled to stop by HC Krishan Singh Bhandari.

The truck driver on inquiry made by HC Arun Kumar disclosed his

name as Salman s/o Sabir Ali r/o Paonta Sahib. HC Arun Kumar

expressed the intention of the raiding pary for carrying out the

search of the truck and in that process gave their own search to

Salman. No incriminating article was recovered during search of

the officials/members of the raiding party. Cabin of the truck was

thereafter searched in accordance with law. During the search,

two transparent polythene bags were found underneath a

blanket kept on the cleaner seat. One polythene contained five

boxes of Pyeevon Spas Plus. Each box had 30 strips of 8

capsules each. Total 1200 intoxicating capsules were recovered

from five boxes of Pyeevon Spas Plus. The other polythene

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contained 2341 loose capsules of PYN SPAS PLUS. In all

1200+2341=3541 intoxicating capsules were recovered from the

truck’s cabin. The procedure contemplated in law was followed

during search and seizure.

3(iv) Suspecting that Salman might be carrying some

contraband on his person, therefore, his personal search was

also considered necessary by the raiding party. Provisions of

Section 50 of the NDPS Act were complied, pursuant to which

Salman agreed for his personal search in presence of a gazetted

officer. The Sub Divisional Police Officer, Police Station Paonta

Sahib was, therefore, requested to come to the spot.

3(v) All this while, the mobile phone of Salman was

showing repeated calls received from one Sanjay. This tallied

with the information earlier received by HC Arun Kumar leading

him to believe that the caller Sanjay might be the same person

at whose instance intoxicating capsules were being smuggled

into the State by Salman. Assistant Sub Inspector Pratap Singh

was thereafter alerted to locate Sanjay for interrogation purpose.

3(vi) The SDPO, Paonta Sahib reached the spot along with

C. Vipin at around 7:50 P.M. whereafter personal search of

Salman was carried out. No incriminating article was recovered

during his personal search. Rukka was prepared at the spot and

was sent to Police Station, Paonta Sahib through C. Vipin. This

led to registration of FIR in question. For further investigation

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Assistant Sub Inspector Gian Singh was deputed who reached the

spot and carried out further investigation from that stage

onwards. Salman was arrested on 16.4.2020. Sanjay (petitioner)

was also brought to Police Station for interrogation and was

arrested on 16/17.4.2020.

3(vii) As per the prosecution case, during investigation

accused Salman had recorded his statement under Section 27 of

Indian Evidence Act to the effect that on 16.4.2020 he as driver

of truck No. HP17C-0903 was bringing raw material of Solvopet

Company from Rudki (Uttrakhand). Sanjay Kumar had asked him

to bring intoxicating capsules from a specific person at a

specified location near Mirzapur, Petrol Pump, Pathedh Auto

Service and he had accordingly procured the intoxicating

capsules so demanded by petitioner Sanjay. The raiding party

is said to have visited the place alongwith accused persons,

however, on account of lockdown, the person could not be

traced. Statements of witnesses under Section 161 Cr.P.C. were

recorded. Call Detail Report (CDR) of mobile phones of accused

Salman as well as of bail petitioner were obtained. CDR revealed

that on 16

th

April, 2020 itself i.e. the date of incident, as many as

14 calls were exchanged between the two.

3(viii) According to the status report, the bail petitioner has

criminal antecedents. Following cases have been registered

against him at Police Station, Paonta Sahib:

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a) FIR No. 49/16 dated 20.2.20216 registered under

Sections 21 and 22 of NDPS Act involving recovery of 936

Spasmo Proxyvon intoxicating capsules, 18 bottles of Corex

syrup and 4 bottles of MedisedXL.

b) FIR No. 205/18 dated 18.7.2018 under Section 21 of

NDPS Act involving 528 intoxicating capsules, 552 capsules of

Spasmo Proxyvon Plus, 8 bottles of Cough Syrup and 150

Nitravet intoxicating tablets.

c) FIR No. 76/19 dated 12.3.2019 under Section 21 of NDPS

Act involving 56 intoxicating capsules of Spasmo Proxyvon.

3(ix) In the instant FIR, the State Forensic Science

Laboratory (SFSL), Junga has reported that Pyeevon Spas Plus as

well as PYN SPAS Plus capsules recovered from the truck’s cabin

contained Tramadol Hydrochloride. According to the SFSL

report, total weight of recovered Pyeevon Spas Plus capsules was

782.400 grams and total weight of powder was 664.800 grams

and total weight of recovered PYN Spas Plus capsules was

1526.332 grams and total weight of powder was 1296.914grams.

4. Ground No. (a): Petitioner's involvement with the

recovered articles:

4(i) Learned Counsel for the petitioner argued that

intoxicating capsules containing Tramadol Hydrochloride were

not recovered from the petitioner. The recovery was effected

even as per the case of the prosecution from the cabin of the

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truck driven by accused Salman. Bail petitioner had no role to

play in the transportation of the capsules in the State of

Himachal Pradesh and therefore, he has been wrongly implicated

with the offences alleged against him. Learned Counsel relied

upon a judgment passed by a Co-ordinate Bench of this Court in

Cr.MP(M) No. 992 of 2020. Whereas, learned Additional

Advocate General opposed the grant of bail on the ground that

the evidence available on record and the investigation carried

out in the FIR in question directly connects the petitioner with

recovery of huge quantity of intoxicating capsules being

transported in the State without any valid document.

4(ii) Each case has to be decided on its own facts. In the

case in hand, main accused Salman has allegedly disclosed

about his transporting the intoxicating capsules at the behest of

petitioner Sanjay Kumar. It has come during investigation at this

stage that the capsules were being smuggled into the State by

accused Salman on the asking of accused Sanjay Kumar without

any legal or valid documents. This was also the secret

information received by HC Arun Kumar while on patrolling duty.

The Call Detail Report of mobile phones belonging to accused

Sanjay Kumar (petitioner) and accused Salman reveal that as

many as fourteen calls had been exchanged between two

accused persons on the date of incident. Petitioner has previous

criminal history (as detailed in para supra) under the NDPS Act in

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respect of involvement with psychotropic substances. His

involvement in the FIR in question, therefore, in the given facts,

which have come out at this stage cannot be ruled out.

4(iii) Total weight of capsules so recovered in the FIR is

2308.732 grams(782.400+1526.332) and total weight of powder

of recovered capsules in the FIR was 1961.714 grams

(664.800+1296.914). Hon’ble Apex Court in Criminal Appeal

No. 722 of 2017, titled as Hira Singh Vs. Union of India,

decided on 22

nd

April, 2020, has held that in the mixture of

narcotic drugs or psychotropic substance with one or more

neutral substance(s), the quantity of the neutral substance(s) is

not to be excluded, rather it is to be taken into consideration

alongwith actual content by weight of the offending drug while

determining the ‘small quantity or commercial quantity’ of a

narcotic drug or psychotropic substance. The relevant para from

the judgment is reproduced thus:-

“10. In view of the above and for the reasons stated above,

Reference is answered as under:-

(I) The decision of this Court in the case of E.Micheal Raj (supra)

taking the view that in the mixture of narcotic drugs and

psychotropic substance with one or more neutral substance(s),

the quantity of the neutral substance(s) is not required to be

taken into consideration while determining the small quantity or

commercial quantity of a narcotic drug or psychotropic

substance and only the actual content by weight of the

offending narcotic drug which is relevant for the purpose of

determining whether it would constitute small quantity or

commercial quantity, is not a good law;

(II) In case of seizure of mixture of Narcotic Drugs or

Psychotropic Substances with one or more neutral substance(s),

the quantity of neutral substance(s) is not to be excluded and to

be taken into consideration alongwith actual content by weight

of the offending drug, while determining the “small or

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commercial quantity” of the Narcotic Drugs or Psychotropic

Substances;

(III) Section 21 of the NDPS Act is not stand-alone provision and

must be construed alongwith other provisions in the statute

including provisions in the NDPS act including Notification No.

S.O.2942(E) dated 18.11.2009 and Notification S.O. 1055(E)

dated 19.10.2001.

(IV) Challenge to Notification dated 18.11.2009 adding “Note 4”

to the Notification dated 19.10.2001, fails and it is observed

and held that the same is not ultra vires to the Scheme and the

relevant provisions of the NDPS Act. Consequently, writ

petitions and Civil Appeal No. 5218/2017 challenging the

aforesaid notification stand dismissed.”

In the instant case the total weight of capsules as

well as total total weight of powder of capsules recovered from

the cabin of the truck exceeded 250 grams notified as

commercial quantity of Tramadol under the NDPS Act, therefore,

rigors of Section 37 of the NDPS Act are attracted. Section 37

reads as under:

“37.Offences to be cognizable and non-bailable.-

(1) Notwithstanding anything contained in the Code of

Criminal Procedure, 1973 (2 of 1974)-

(a)every offence punishable under this Act shall be

cognizable;

(b)no person accused of an offence punishable for

[offences under section 19 of section 24 or section 27A

and also for offences involving commercial quantity]

shall be released on bail or on his own bond unless-

(i)the Public Prosecutor has been given an opportunity

to oppose the application for such release, and

(ii)where the Public Prosecutor opposes the application,

the court is satisfied that there are reasonable grounds

for believing that he is not guilty of such offence and

that he is not likely to commit any offence while on

bail.

(2)The limitations on granting of bail specified in clause

(b) of sub-section (1) are in addition to the limitations under

the Code of Criminal Procedure, 1973 (2 of 1974) or any other

law for the time being in force, on granting of bail.”

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In this regard, Hon’ble Apex Court in AIR 2020 SC

721, State of Kerala Etc. Versus Rajesh Etc., held as under

vide paras 19 to 21:-

“19. This Court has laid down broad parameters to be

followed while considering the application for bail moved by

the accused involved in offences under NDPS Act. In Union of

India Vs. Ram Samujh and Ors. 1999(9) SCC 429, it has been

elaborated as under:-“7. It is to be borne in mind that the

aforesaid legislative mandate is required to be adhered to and

followed. It should be borne in mind that in a murder case, the

accused commits murder of one or two persons, while those

persons who are dealing in narcotic drugs are instrumental in

causing death or in inflicting deathblow to a number of

innocent young victims, who are vulnerable; it causes

deleterious effects and a deadly impact on the society; they

are a hazard to the society; even if they are released

temporarily, in all probability, they would continue their

nefarious activities of trafficking and/or dealing in intoxicants

clandestinely. Reason may be large stake and illegal profit

involved. This Court, dealing with the contention with regard to

punishment under the NDPS Act, has succinctly observed

about the adverse effect of such activities in Durand Didier v.

Chief Secy., Union Territory of Goa [(1990) 1 SCC 95)] as under:

24. With deep concern, we may point out that the

organised activities of the underworld and the clandestine

smuggling of narcotic drugs and psychotropic substances

into this country and illegal trafficking in such drugs and

substances have led to drug addiction among a sizeable

section of the public, particularly the adolescents and

students of both sexes and the menace has assumed

serious and alarming proportions in the recent years.

Therefore, in order to effectively control and eradicate this

proliferating and booming devastating menace, causing

deleterious effects and deadly impact on the society as

a whole, Parliament in its wisdom, has made effective

provisions by introducing this Act 81 of 1985 specifying

mandatory minimum imprisonment and fine.

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8. To check the menace of dangerous drugs flooding the

market, Parliament has provided that the person accused of

offences under the NDPS Act should not be released on bail

during trial unless the mandatory conditions provided in

Section 37, namely,

(i) there are reasonable grounds for believing that the

accused is not guilty of such offence; and

(ii) that he is not likely to commit any offence while on bail

are satisfied. The High Court has not given any justifiable

reason for not abiding by the aforesaid mandate while

ordering the release of the respondent-accused on bail.

Instead of attempting to take a holistic view of the

harmful socio-economic consequences and health

hazards which would accompany trafficking illegally in

dangerous drugs, the court should implement the law in

the spirit with which Parliament, after due deliberation,

has amended.”

20. The scheme of Section 37 reveals that the exercise of

power to grant bail is not only subject to the limitations

contained under Section 439 of the CrPC, but is also subject to

the limitation placed by Section 37 which commences with

nonobstante clause. The operative part of the said section is in

the negative form prescribing the enlargement of bail to any

person accused of commission of an offence under the Act,

unless twin conditions are satisfied. The first condition is that

the prosecution must be given an opportunity to oppose the

application; and the second, is that the Court must be satisfied

that there are reasonable grounds for believing that he is not

guilty of such offence. If either of these two conditions is not

satisfied, the ban for granting bail operates.

21. The expression “reasonable grounds” means something

more than prima facie grounds. It contemplates substantial

probable causes for believing that the accused is not guilty of

the alleged offence. The reasonable belief contemplated in the

provision requires existence of such facts and circumstances

as are sufficient in themselves to justify satisfaction that the

accused is not guilty of the alleged offence. In the case on

hand, the High Court seems to have completely overlooked the

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underlying object of Section 37 in addition to the limitations

provided under the CrPC, or any other law for the time being in

force, regulating the grant of bail, its liberal approach in the

matter of bail under the NDPS Act s indeed uncalled for.”

In order to make out a case for release on bail,

petitioner has to satisfy the following twin conditions imposed in

the aforesaid section:-

(i)Court should be satisfied that there are reasonable

grounds for believing that the petitioner is not guilty

of such offience; and

(ii)Petitioner is not likely to commit any offence while

on bail.

In view of the facts as have come out and

investigation carried out by the Investigating Agency, at this

stage it cannot be said that there are no reasonable grounds to

believe about petitioner’s involvement in the recovery of

psychotropic substance in the FIR in question. The first

contention of the petitioner, therefore, fails and is rejected

accordingly.

5. Ground (b): Compliance of Section 42 of NDPS

Act.

Two fold submissions have been made by learned

Counsel for the petitioner under this head:-

a) non-recording of secret information received by the

police party.

b) HC Arun Kumar, who carried out the search was not

authorised to search.

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5(i) Contention regarding non-recording of secret

information.

It was argued by learned Counsel for the petitioner

that secret information allegedly received by HC Arun Kumar was

not reduced by him into writing before effecting search of the

truck in question. This according to him vitiates the entire

search, the alleged recovery and seizure thereby entitling the

petitioner to be released on bail.

5(i)(a) Before delving into the related factual aspects, it

may be noticed here that the search was carried out and

recovery was effected from the cabin of the truck driven by

accused Salman. It becomes questionable as to whether these

aspects can even be raised at this stage by the bail petitioner

who has been made an accused in the FIR by linking him with

the alleged recovery of the contraband. Nonetheless the point

raised is being considered hereinafter.

Record shows that a police party comprising of HC

Arun Kumar, C. Vipin, PC Om Parkash along with C. Dinesh was

on patrolling duty in area under the jurisdiction of Police Station,

Paonta Sahib on 16.4.2020, when HC Arun Kumar received a

secret information about contraband being illegally brought into

the State by accused Salman at the behest of bail petitioner.

According to the record, the secret information so received by

HC Arun Kumar was reduced by him in writing and Rukka in this

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regard was thereafter handed over to C. Vipin who further carried

it to Police Station, Paonta Sahib. Therefore, the contention that

secret information was not reduced in writing is not factually

correct.

5(i)(b) Hon’ble Apex Court in 2015(6) SCC 222 titled as

Mohan Lal vs. State of Rajasthan after considering entire law in

subject including previous decisions in (2009) 8 SCC 539 titled

Karnail Singh vs. State of Haryana; (2000) 2 SCC 513 titled

Abdul Rashid Ibrahim Mansuri vs. State of Gujarat; (2001) 6

SCC 692 titled as Sajan Abrajam vs. State of Kerala; (2011) 8

SCC 130 titled as Rajinder Singh vs. State of Haryana held

that total non-compliance with the provisions of sub section (1)

and (2) of section 42 of the ND&PS Act is impermissible but

delayed compliance with satisfactory explanation for delay can

be countenanced. Relevant paragraphs from the judgment are :

“30.It is submitted by Ms. Aishwarya Bhati, learned counsel

for the appellant that there has been non-compliance of Section

42 of the NDPS Act and hence, the conviction is vitiated. It is

urged by her that the Investigating Officer has not reduced the

information to writing and has also not led any evidence of

having made a full report to his immediate official superior. The

High Court has taken note of the fact that information was given

to Bheem Singh, PW-12, and recovery was made by him who

was the Sub-Inspector and SHO at the police station. That apart,

in this context, we may refer with profit to the Constitution

Bench decision in Karnail Singh v. State of Haryana [(2009) 8

SCC 539], wherein the issue which emerged for consideration is

whether Section 42 of the NDPS Act is mandatory and failure to

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take down the information in writing and forthwith sending a

report to his immediate officer superior would cause prejudice

to the accused? The Court was required to reconcile the

decisions in Abdul Rashid Ibraghim Mansuri v. State of

Gujrat [(2000) 2 SCC 513] and Sajan Abraham v. State of

Kerala, [(2001) 6 SCC 692]. The Constitution Bench explaining

the position opined that Abdul Rashid (supra) did not require

about literal compliance with the requirements of Section 42(1)

and 42(2) nor did Sajan Abraham (supra) hold that requirement

of Section 42(1) and 42(2) need not be fulfilled at all. The larger

Bench summarized the effect of two decisions. The summation

is reproduced below:-

"(a) The officer on receiving the information [of the nature

referred to in sub-section (1) of Section 42] from any person

had to record it in writing in the register concerned and

forthwith send a copy to his immediate official superior, before

proceeding to take action in terms of clauses (a) to (d) of

Section 42(1).

(b) But if the information was received when the officer was not

in the police station, but while he was on the move either on

patrol duty or otherwise, either by mobile phone, or other

means, and the information calls for immediate action and any

delay would have resulted in the goods or evidence being

removed or destroyed, it would not be feasible or practical to

take down in writing the information given to him, in such a

situation, he could take action as per clauses (a) to (d) of

Section 42(1) and thereafter, as soon as it is practical, record

the information in writing and forthwith inform the same to the

official superior.

(c) In other words, the compliance with the requirements of

Section 42(1) and 42(2) in regard to writing down the

information received and sending a copy thereof to the superior

officer, should normally precede the entry, search and seizure

by the officer. But in special circumstances involving emergent

situations, the recording of the information in writing and

sending a copy thereof to the official superior may get

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postponed by a reasonable period, that is, after the search,

entry and seizure. The question is one of urgency and

expediency.

(d) While total non-compliance with requirements of sub-

sections (1) and (2) of Section 42 is impermissible, delayed

compliance with satisfactory explanation about the delay will be

acceptable compliance with Section 42. To illustrate, if any

delay may result in the accused escaping or the goods or

evidence being destroyed or removed, not recording in writing

the information received, before initiating action, or non-

sending of a copy of such information to the official superior

forthwith, may not be treated as violation of Section 42. But if

the information was received when the police officer was in the

police station with sufficient time to take action, and if the

police officer fails to record in writing the information received,

or fails to send a copy thereof, to the official superior, then it

will be a suspicious circumstance being a clear violation of

Section 42 of the Act. Similarly, where the police officer does

not record the information at all, and does not inform the official

superior at all, then also it will be a clear violation of Section 42

of the Act. Whether there is adequate or substantial compliance

with Section 42 or not is a question of fact to be decided in each

case. The above position got strengthened with the amendment

to Section 42by Act 9 of 2001."

31. In Rajinder Singh v. State of Haryana, [(2011) 8 SCC 130]

placing reliance on the Constitution Bench decision, it has been

opined that total non-compliance with the provisions of sub-

sections (1) and (2) of Section42 of the Act is impermissible but

delayed compliance with satisfactory explanation for the delay

can, however, be countenanced.”

5(i)(c) Present is a case of grant of bail. At this stage it is

not necessary to go deeper into the evidence to find out as to

whether there was strict compliance of provisions of Section

42(2) of the Act or not. The record shows that there has been

substantial compliance, which for the purpose of adjudicating the

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bail petition is sufficient. It will be for the trial Court to decide

about its strict compliance/substantial compliance and effects

thereof after recording of evidence as to whether the

compliance in question was sufficient or had vitiated the trial.

However, at this stage after going through the record, the

compliance with respect to recording of secret information in

writing before proceeding to search the vehicle cannot be said to

be lacking. Accordingly, the first contention is rejected.

5(ii) Head Constable not authorised to search.

5(ii)(a) Placing reliance upon a Single Bench judgment of

High Court of Punjab and Haryana reported in 1988 Cr. L.J. 1181,

titled Karam Singh vs. State of Punjab and of Rajasthan High

Court reported in (1987) Cr.L.R. 698, titled Nand Lal vs. State of

Rajasthan, Learned Counsel for the petitioner contended that HC

Arun Kumar who carried out search and effected recovery, was

not authorised to do so. Learned Counsel further argued that a

Head Constable is equivalent to Constable, therefore, search and

recovery effected by him was hit by the Section 42 of NDPS Act.

5(ii)(b) It will be appropriate to reproduce here Section 42 of

the Act:

“42. Power of entry, search, seizure and arrest without

warrant or authorisation.—(l) Any such officer (being an officer

superior in rank to a peon, sepoy or constable) of the

departments of central excise, narcotics, customs, revenue

intelligence or any other department of the Central Government

including para-military forces or armed forces as is empowered

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in this behalf by general or special order by the Central

Government, or any such officer (being an officer superior in

rank to a peon, sepoy or constable) of the revenue, drugs

control, excise, police or any other department of a State

Government as is empowered in this behalf by general or

special order of the State Government, if he has reason to

believe from personal knowledge or information given by any

person and taken down in writing that any narcotic drug, or

psychotropic substance, or controlled substance in respect of

which an offence punishable under this Act has been committed

or any document or other article which may furnish evidence of

the commission of such offence or any illegally acquired

property or any document or other article which may furnish

evidence of holding any illegally acquired property which is

liable for seizure or freezing or forfeiture under Chapter VA of

this Act is kept or concealed in any building, conveyance or

enclosed place, may between sunrise and sunset,—

(a) enter into and search any such building, conveyance

or place;

(b) in case of resistance, break open any door and

remove any obstacle to such entry;

(c) seize such drug or substance and all materials used

in the manufacture thereof and any other article and any

animal or conveyance which he has reason to believe to

be liable to confiscation under this Act and any

document or other article which he has reason to believe

may furnish evidence of the commission of any offence

punishable under this Act or furnish evidence of holding

any illegally acquired property which is liable for seizure

or freezing or forfeiture under Chapter VA of this Act;

and

(d) detain and search, and, if he thinks proper, arrest

any person whom he has reason to believe to have

committed any offence punishable under this Act:

[Provided that in respect of holder of a licence for

manufacture of manufactured drugs or psychotropic substances

or controlled substances granted under this Act; or any rule or

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order made thereunder, such power shall be exercised by an

officer not below the rank of sub-inspector:

Provided further that] if such officer has reason to believe that a

search warrant or authorisation cannot be obtained without

affording opportunity for the concealment of evidence or facility

for the escape of an offender, he may enter and search such

building, conveyance or enclosed place at any time between

sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing

under sub-section (1) or records grounds for his belief under the

proviso thereto, he shall within seventy-two hours send a copy

thereof to his immediate official superior.”

5(ii)(c)2000(8) SCC 590, titled Roy V.D. v. State of Kerala

was a case where search was carried out by an Excise Inspector.

On consideration of Section 41(2) and Section 42(1) of NDPS Act,

following was observed by Apex Court therein:-

“11.Sub-section (2) of Section 41 of the NDPS Act entitles

any officer of gazetted rank of the departments of central

excise, narcotics, customs, revenue intelligence or any other

department of the Central Government or of the Border Security

Force who has been empowered in that behalf by general or

special order of the Central Government, or any officer of the

revenue, drugs control, excise, police or any other department

of a State Government as is empowered in that behalf by

general or special order of the State Government, to arrest a

person or search a building, conveyance or a place or to

authorise any officer subordinate to him but superior in rank to

a peon, sepoy or a constable, to arrest such a person or search

a building, conveyance or place whether by day or by night.

16.Now, it is plain that no officer other than an empowered

officer can resort to Section 41(2) or exercise powers

under Section 42(1) of the NDPS Act or make a complaint under

clause (d) of sub-section (1) of Section 36-A of the NDPS Act. It

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follows that any collection of material, detention or arrest of a

person or search of a building or conveyance or seizure effected

by an officer not being an empowered officer or an authorised

officer under Section 41(2) of the NDPS Act, lacks sanction of

law and is inherently illegal and as such the same cannot form

the basis of a proceeding in respect of offences under Chapter

IV of the NDPS Act and use of such a material by the

prosecution vitiates the trial.”

Further after noticing the judgment in (1994) 3 SCC

299, titled State of Punjab vs. Balbir Singh that if arrest or

search contemplated under Sections 41 and 42 is made by an

officer not empowered or authorised, it would per se be illegal,

would affect prosecution case and consequently vitiate the trial;

and after noticing the plea of respondent therein relying upon

State of Punjab vs. Baldev Singh reported in (1999)6 SCC

172 that even in such situation, trial would not be vitiated but

recovery of article would become suspect, therefore, conviction

and sentence of accused would be vitiated only if the same was

recorded solely on the basis of possession of such article; it was

held in para-20 of Roy V.D.’s case supra as under:

“20.It may be noticed that that conclusion was reached by

the Constitution Bench in the context of non-compliance

of Section 50 of the NDPS Act. While emphasising that it is

imperative on the officer who is making search of a person to

inform him of his right under sub-section (1) of Section 50 of the

NDPS Act, it was held that the recovery of the illicit article in

violation of Section 50 of the NDPS Act would render the

recovery of the illicit article suspect and use of such material

would vitiate the conviction and sentence of an accused. It is

manifest that the recovery of illicit article in that case was by a

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High Court of H.P.21

competent officer but was in violation of Section 50 of the NDPS

Act. In the instant case, however, the search and recovery were

by an officer who was not empowered so to do. Further in Balbir

Singh case (supra) this Court took the view that arrest and

search in violation of Sections 41and 42 of the NDPS Act being

per se illegal would vitiate the trial. Therefore, the said

conclusion cannot be called in aid to support the order under

challenge. If the proceedings in the instant case are not

quashed, the illegality will be perpetuated resulting in grave

hardship to the appellant by making him to undergo the ordeal

of trial which is vitiated by the illegality and which cannot result

in conviction and sentence. It is, in our view, a fit case to

exercise power under Section 482 of Cr.P.C. to quash the

impugned proceedings.”

5(ii)(d) Bare provisions of Section 42 make it clear that only

an officer above the rank of peon, Sepoy or Constable of the

police department can carryout search in terms of Section 42 of

NDPS Act. Head Constable is superior in rank to a Constable and

has not been barred under the Act from carrying out the search.

A division Bench of this Court in 2001(1) SLC 150, titled Raj

Kumar v. State of Himachal Pradesh while dealing with the

plea of accused therein that ASI who effected search was not

empowered under Section 42 of the Act held that it is only in

case of an officer belonging to ‘any other department of a state

government’ that a general or special order by the state

government is necessary for empowering them under Section 42

of the Act and not otherwise. Relevant para from the judgment

are produced hereinafter:-

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High Court of H.P.22

“12. Placing emphasis and reliance on the words "as is

empowered in this behalf by general or special order of the

State Government," the learned Counsel for the accused has

contended that there is nothing on the record to show that PW

13, ASI Pushap Lata, who had carried out the search, was duly

empowered under Section 42 of the Act. Therefore, since the

search was carried out by an officer who has not been duly

empowered, such search would be an illegal search and cannot

be pressed into service against the accused.

13. We do not find force in the contention raised by the learned

Counsel for the accused that PW 13 ASI Pushap Lata was not

empowered under Section 42 of the Act. A bare reading of the

section shows that all such officers superior in rank to a peon,

sepoy or constable belonging to the revenue, drugs control,

excise and police are empowered under Section 42 of the Act by

virtue of their office. It is only in case of an officer belonging to

"any other department of a State Government" that a general

or special order by the State Government is required

empowering them under Section 42 of the Act. The word "or"

appearing after the word "police" and before the words "any

other department of a State Government" has to be read

disjunctively in order to give effect to the manifest intention of

the Legislature. So reading, it is evident that the words "as is

empowered in this behalf by general or special order of the

State Government" are to be read only with the words "any

other department of a State Government”. Therefore, PW 13 ASI

Pushap Lata being a police officer superior in rank to a

constable, is an officer duly empowered under Section 42 of the

Act.”

5(ii)(e) Learned Additional Advocate General has placed on

record various notifications/instructions which reveal that a

notification dated 18.08.1987 was issued whereby powers were

given to Excise Officers under Section 42(1) and Section 67 of

the Narcotics Drugs and Psychotropic Substances Act, 1985.

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High Court of H.P.23

Vide another notification of 18.8.1987 issued in exercise of

powers conferred under Section 7(1) of NDPS Act, all officers

appointed under Punjab Excise Act, 1914 as applied to Himachal

Pradesh have been appointed with their respective designations,

classes & jurisdiction for the purposes of NDPS Act as well. Vide

yet another notification of 18.8.1987 issued in exercise of powers

under Sections 42(1) and 67 of NDPS Act, Excise Officers

appointed under Punjab Excise Act and exercising powers under

Sections 10 & 11 of the Act as group ‘A’ and group ‘B’ officers,

were authorized to exercise powers and duties under Sections 42

& 67 of the Act. Further as per Govt. of Himachal Pradesh Excise

& Taxation Department Notification No. 1-17/64=E&T dated 7

th

August, 1965, the Himachal Pradesh (Excise Powers and Appeal)

orders, recognizes the following categories of officers as Excise

Officers under Section 10 and Section 11 of the Punjab Excise Act

1914 as applicable to Himachal Pradesh, relevant portion of

which is reproduced as below:-

“5. Under section 10 of the said Punjab Excise Act, as applied to

Himachal Pradesh, there shall be three classes of Excise Officers, to the

designated Ist Class, 2

nd

Class and 3

rd

Class, respectively, and the persons

mentioned in groups ‘A’ ‘B’ and ‘C’ below shall be respectively Excise

officers of the Ist, 2

nd

and 3

rd

Class.

Group ‘A’

(1) All Assistant Collectors of Ist Grade.

(2) The Asstt. Excise & Taxation Commissioner.

(3) All Excise and Taxation Officers.

(4) All Tehsildars.

(5) All Excise & Taxation Inspectors.

(6) All Naib-Tehsildars.

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(7) All Excise & Taxation Sub-Inspectors.

Group ‘B’

Excise Officers of the Second Class.

All Excise and Taxation Sub-Inspectors (leave reserve)

Group ‘C’

Excise Officers of the Third Class.-

(1) All Head Clerks and Clerks attached to the offices

of the Excise & Taxation Officers of the Districts.

(2) All Excise Chaprasis and Peons.

6. The persons mentioned in groups ‘A’ and ‘B’ below are, under

Section 11 of the said Punjab Excise Act, as applied to Himachal

Pradesh, invested with the powers of the Excise Officers of the 1

st

Class

and 3

rd

Class respectively.-

Group ‘A’

(To exercise the powers of an Excise Officers of the Ist Class).

(1) All Police Officers of the rank of Head Constable and any

rank superior thereto.

(2) All Assistant Commissioners, Superintendents, Assistant

Superintendents and Probationary Assistant Superintendents

of the Central Excise Department.

Group ‘B’

(To exercise the powers of an Excise Officers of the 3

rd

Class).

(1) All field Kanungos.

(2) All Police constables.

It is evident from co-relation of the above

notifications that the powers of Excise officers under Sections 10

and 11 of the Punjab Excise Act have been granted to various

classes of officers and officials including police officers of the

rank of Head Constable and above and the same set of officers

and officials by virtue of being Excise Officers under the Excise

Act derive powers under Section 42(1) and Section 67 of the

NDPS Act.

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Therefore, the second contention raised by the

petitioner has no merit and is accordingly rejected at this stage.

6. Third Ground: Complainant was himself the

Investigating Officer.

6(i) Placing reliance upon (2018) 17 SCC 627 titled

Mohan Lal vs. State of Punjab, it has been contended that

investigation in the case was carried out by the complainant,

thereby vitiating the criminal process, therefor, petitioner is

entitled to bail. It is apt to reproduce hereinafter relevant part of

the judgment in Mohan Lal’s case supra:

“ 30.In view of the conflicting opinions

expressed by different two Judge Benches of this Court, the

importance of a fair investigation from the point of view of an

accused as a guaranteed constitutional right under Article

21 of the Constitution of India, it is considered necessary that

the law in this regard be laid down with certainty. To

leave the matter for being determined on the individual facts

of a case, may not only lead to a possible abuse of powers, but

more importantly will leave the police, the accused, the lawyer

and the courts in a state of uncertainty and confusion which has

to be avoided. It is therefore held that a fair investigation,

which is but the very foundation of fair trial,

necessarily postulates that the informant and the investigator

must not be the same person. Justice must not only

be done, but must appear to be done also. Any possibility of

bias or a predetermined conclusion has to be excluded.

This requirement is all the more imperative in laws

carrying a reverse burden of proof.”

6(ii) In Varinder Kumar vs. State of Himachal Pradesh

reported in 2020 (3) SCC 321, Hon’ble Supreme Court held that

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law laid down in Mohan Lal (supra) will not be allowed to become

a spring board for acquittal in prosecutions prior to the same,

irrespective of all other considerations.

6(iii) A constitution Bench of Hon’ble Apex Court in a

judgment delivered on 31.8.2020, in case titled Mukesh Singh

vs. State (Narcotic Branch of Delhi), Special Leave Petition

(Criminal) Diary No. 39528/2018 alongwith Special Leave Petition

(Criminal) No. 5648/2019 and other matters, has held that

merely because the informant and the Investigating Officer is

the same, it cannot be said that investigation is biased and the

trial is vitiated. It has been clarified that it depends on the facts

and circumstances of each case if the investigation has become

tainted because the informant and the investigating officer was

the same. It cannot be held as a blanket rule. Decision in

Mohan Lal vs. State of Punjab (2018) 17 SCC 627 and other

decision taking contrary view that the informant cannot be the

investigator have been held as not good law and have been

overruled. The concluding part of the judgment answering the

reference reads as under:-

“12. From the above discussion and for the reasons stated

above, we conclude and answer the reference as under:

I. That the observations of this Court in the cases of Bhagwan

Singh v. State of Rajasthan (1976) 1 SCC 15; Megha Singh v.

State of Haryana (1996) 11 SCC 709; and State by Inspector of

Police, NIB, Tamil Nadu v. Rajangam (2010) 15 SCC 369 and the

acquittal of the accused by this Court on the ground that as the

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informant and the investigator was the same, it has vitiated the

trial and the accused is entitled to acquittal are to be treated to

be confined to their own facts. It cannot be said that in the

aforesaid decisions, this Court laid down any general

proposition of law that in each and every case where the

informant is the investigator there is a bias caused to the

accused and the entire prosecution case is to be disbelieved

and the accused is entitled to acquittal; II. In a case where the

informant himself is the investigator, by that itself cannot be

said that the investigation is vitiated on the ground of bias or

the like factor. The question of bias or prejudice would depend

upon the facts and circumstances of each case. Therefore,

merely because the informant is the investigator, by that itself

the investigation would not suffer the vice of unfairness or bias

and therefore on the sole ground that informant is the

investigator, the accused is not entitled to acquittal. The matter

has to be decided on a case to case basis. A contrary decision

of this Court in the case of Mohan Lal v. State of Punjab (2018)

17 SCC 627 and any other decision taking a contrary view that

the informant cannot be the investigator and in such a case the

accused is entitled to acquittal are not good law and they are

specifically overruled.”

6(iv) Instant was a case of prior information received by

HC Arun Kumar, who effected search at the spot. He is the one

who sent Rukka to the Police Station through C. Vipin. FIR was

registered on the basis of this Rukka. HC Arun Kumar is the

complainant in the FIR. However, post receipt of Rukka at Police

Station, further investigation in the matter was conducted by ASI

Gian Singh. At this stage, therefore, it cannot be said that

complainant was himself the Investigator. Even otherwise in

view of pronouncement of constitution Bench of Hon’ble Apex

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Court in Mukesh Singh’s case supra, the ground at this stage of

the case, lacks merit and is, therefore, rejected.

7. Normally in bail petition facts of the case in detail are

not required to be ventured into. However, in the instant case,

specific questions insistently raised at this very stage, have been

looked into for limited purpose for finding out whether there are

reasonable grounds to believe at this stage that the accused is

not guilty of possessing commercial quantity of contraband for

considering his release on bail under Section 37 of NDPS Act.

It is further clarified that the observations and

findings given above may not be equated with the one which is

to be recorded at the end of the trial. It shall be open for the

petitioner to take up all pleas available to him in accordance with

law including the plea of bias, prejudice, non-compliance with

statutory provisions etc. during the trial. Learned trial Court will

adjudicate the matter on merits in accordance with law without

being influenced by above observations.

With the above observations, the petition is

dismissed.

(Jyotsna Rewal Dua),

Judge.

September 2

nd

, 2020,

(vs)

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