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2021 DIGILAW 346 (UTT)

Ravi Kumar v. State Of Uttarakhand

2021-07-08

R.C.KHULBE

body2021
JUDGMENT R.C. Khulbe, J. - Applicant-Ravi Kumar is in judicial custody in connection with FIR/Case Crime No.0067 of 2020, u/s 8/20/60 of the Narcotics Drugs & Psychotropic Substances Act, 1985 (hereinafter to be referred as 'the Act') registered at P.S. Dharasu, District Uttarkashi. 2. As per the FIR on 12.12.2020 at about 18:57 hours, S.O. Vinod Prasad Thapliyal along with other police personnel was busy on routine checking of the vehicles; when they reached at Peepalmandi by-pass, the informer informed them that a person was coming from Chiniyalisaur Bazar by a vehicle bearing registration No.UK07-V-5720 towards Uttarkashi; on this information the police personnel apprehended the accused and after taking search, 3.840 Kg. of illegal Charas was recovered from the said vehicle; accordingly, recovery memo was prepared at the spot. 3. It is argued that the accused has been falsely implicated; he is languishing in jail since 12.12.2020; there is no criminal history; as per the recovery memo, the police party had prior information about the vehicle, in spite of that, the police party did not comply with the provisions of Sections 42, 50 of the NDPS Act as well as Section 100 Cr.P.C.; accordingly, the accused is entitled for bail in view of the law laid down by the Apex Court in the case of Buta Singh vs. State of Haryana , (2021) AIR SC 1913; and he further submitted that the police party had sufficient time to record the information but neither they recorded the information nor obtained any warrant from the competent court. 4. Per contra, learned Government Advocate vehemently opposed for bail and argued that the police party did not have sufficient time to record the information as they were on patrolling duty, but after taking search, they have sent the information to their higher authority (Dy.S.P.) within a period of two hours; the contraband article comes within the definition of commercial quantity; hence, the accused is not entitled for bail. 5. Heard learned Counsel for both the parties and perused the entire record. 6. 5. Heard learned Counsel for both the parties and perused the entire record. 6. As far as the compliance of Section 50 of NDPS Act is concerned, from a perusal of the recovery memo, it is clear that the contraband article Charas was recovered from the vehicle (Car), thus, there was no need to make compliance of Section 50 of the Act in view of the law laid down by the Apex Court in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 . 7. As far as the compliance of Section 42 of the Act is concerned, the Apex Court in 'State of Rajasthan v. Jag Raj Singh @ Hansa, (2016) 11 SCC 687 has held that the compliance of Section 42 of the Act is mandatory in such a case where the vehicle is a private one. 8. The Hon'ble Apex Court in the recent case Buta Singh v. State of Haryana (Supra) has clearly held that a private vehicle would not come within the expression of "public place", as explained in Section 43 of the Act. 9. No doubt the law laid down by the Apex Court is binding on the soil of India in view of Article 141 of the Constitution of India. Now, coming to the facts of this case, from a perusal of the recovery memo, it is clear that when the police party was on patrolling duty, they received information from informer about the contraband article being brought by the accused by his vehicle bearing No.UK07-V-5720; when the police party reached at the spot and apprehended the accused, they informed the accused about his right and the accused preferred to be searched before a Magistrate; accordingly, the police party informed the concerned Magistrate, and Mr. Pratap Singh Chauhan, Tehsildar/Magistrate reached at the spot; accordingly, the search was conducted and the above contraband article was recovered from the car of the accused. 10. Learned counsel for the applicant drew the attention of the Court towards Section 42 of the Act and vehemently argued that although, the police party had prior information, but they did not note down the information before taking the search nor obtained any search warrant nor did they inform their superior officer. 11. 10. Learned counsel for the applicant drew the attention of the Court towards Section 42 of the Act and vehemently argued that although, the police party had prior information, but they did not note down the information before taking the search nor obtained any search warrant nor did they inform their superior officer. 11. The Constitutional Bench of the Hon'ble Apex Court in Karnail Singh vs. State of Haryana , (2009) 8 SCC 539 , has held that if the information was received when the officer was not in the police station, but while he was on the move either on patrolling 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. 12. The heading of Section 42 of the Act starts with 'power of entry, search, seizure and arrest without warrant or authorisation'. From the perusal of the Section 42 of the Act, it is clear that under Section 42 of the Act, the empowered officer has the power of entry, search, seizure and arrest without obtaining any warrant or authorization. 13. As regards the Proviso appended to Section 42(1) of the Act is concerned, this clause relates to search of any building, conveyance or enclosed place, at any time between sunset and sunrise. 14. No doubt, in the present matter, as per the record 'prime facie' it is clear that the arresting party did not note down the information before taking search, but as per the record, the police party informed their superior officer within a span of two hours. As regards the compliance of Section 42 of the Act is concerned, as soon as the police party received the information from the informer, they immediately informed the Magistrate about the contraband, and Mr. Pratap Singh Chauhan, who had been vested with the Magistrate powers, reached at the spot and, accordingly, the search was conducted in his presence. As regards the compliance of Section 42 of the Act is concerned, as soon as the police party received the information from the informer, they immediately informed the Magistrate about the contraband, and Mr. Pratap Singh Chauhan, who had been vested with the Magistrate powers, reached at the spot and, accordingly, the search was conducted in his presence. From this, it is 'prima facie' clear that the police personnel, although, were not in a position to note down the information because they were on patrolling duty, but they properly informed the Magistrate immediately before effecting the search, and thereafter informed the Dy.S.P. also. 15. In the case of Buta Singh (Supra), the police party themselves searched the accused and their vehicle, while in the present matter, the police party immediately informed the Magistrate, in whose presence, the search was conducted. 16. The learned counsel for the accused lastly submitted that there is a violation of provision of Subsection (5) of Section 50 of the Act. 17. The extract of Section 50(5) of the Act is extracted hereinbelow: - "50. Conditions under which search of persons shall be conducted- (1) ......... (2) ......... (3) ......... (4) ......... (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973. (6) ............" 17. In so far as the applicability of Section 50(5) of the Act is concerned, this provision is applicable where the authorized officer is not in a position to take the accused to be searched before the nearest Gazetted Officer or Magistrate, in that situation, he may proceed to search the person as provided under section 100 of the Code of Criminal Procedure, however, in the present matter, the search was conducted in presence of the Magistrate. Accordingly, prima facie, it is clear that the arresting party did not violate this provision. 17. Accordingly, prima facie, it is clear that the arresting party did not violate this provision. 17. Moreover, it is a matter of evidence whether or not, there was total non-compliance of Section 42 of the Act, but 'prima facie' it is apparent that the police party had already informed the Magistrate before taking search and also informed their superior officer after taking search. 18. Looking to the entire facts and circumstances of case, the applicant does not deserve bail at this stage. Accordingly, the bail application is dismissed. 19. Pending application, if any, stands disposed of.