The Delhi High Court granted bail to the accused in a commercial quantity NDPS case due to non-compliance with mandatory authorization requirements for search by a female officer under Sections 42 and 50 of the NDPS Act.
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BAIL APPLN. 626/2023 HIGH COURT OF DELHI Date of Decision: 13.04.2023
BAIL APPLN. 626/2023 HEENA KHATUN ..... Petitioner Through: Mr Kundan Kumar and Mr Ankit Dhupar, Advs.
VERSUS
STATE NCT OF DELHI ..... Respondent Through: Mr Ajay Vikram Singh, APP for State SI Tej Singh, Narcotics Cell/OND
CORAM:
HON'BLE MR. JUSTICE JASMEET SINGH
JUDGMENT
: JASMEET SINGH, J (ORAL)
1. This is an application seeking grant of bail in FIR No. 253/2021, under Sections 21/25/29 NDPS Act, registered at Police Station-Narela.
2. The facts in the present case are that the applicant was arrested on a secret information at Sector A-6, Narela, where she was apprehended with 300 grams of heroin. The search of the applicant was carried out by a Woman Constable, namely Seenu. It is stated by Mr Kundan Kumar, learned counsel for the applicant that the woman constable was not authorized to conduct search in the said case. It is stated that the ACP had not authorised or delegated authorization to the Woman Constable Seenu to carry out the search under Section 50 of the NDPS Act. Hence, the search itself is faulty and the applicant is entitled to bail.
2. Mr. Singh ld. counsel for the respondent has stated that since the recovery is of the commercial quantity, the twin conditions prescribed under section 37 NDPS has to be satisfied.
3. I have heard learned counsel for the parties.
4. In the present case the search has been carried out by a lady Constable Seenu.
5. The issue in the present case is that the applicant herein is required to be searched by an „empowered/authorised‟ female officer. To appreciate the submissions, I deem it apposite to refer to Section 42 and 50 of the NDPS Act, which reads as under:
“42. Power of entry, search, seizure and arrest without warrant or authorisation. (1) 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 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 persons 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
ARORA 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 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.” “50. Conditions under which search of persons shall be conducted. (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
ARORA (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (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 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.”
6. The Supreme Court in State of Punjab vs Balbir Singh, 1994 (3) SCC 299 has stated that
“24. …In that context while determining whether the provisions of the Act to be followed after the arrest or search are directory or mandatory, it will have to be kept in mind that the provisions of a statute creating public duties are generally speaking directory. The provisions of these two sections contain certain procedural instructions for strict compliance by the officers. But if there is no strict compliance of any of these instructions that by itself cannot render the acts done by these officers null and void and at the most it may affect the probative value of the evidence regarding arrest or search and in some cases it may invalidate such arrest or search. But such violation by itself
ARORA does not invalidate the trial or the conviction if otherwise there is sufficient material. Therefore it has to be shown that such non-compliance has caused prejudice and resulted in failure of justice. The officers, however, cannot totally ignore these provisions and if there is no proper explanation for noncompliance or where the officers totally ignore the provisions then that will definitely have an adverse effect on the prosecution case and the courts have to appreciate the evidence and the merits of the case bearing these aspects in view. However, a mere non-compliance or failure to strictly comply by itself will not vitiate the prosecution.
25. The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows: (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act. (2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as ARORA enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal. (2-B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction…”
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7. From the above it is clear that there should have been compliance of the mandatory provisions. The authorities cannot ignore statutory rigours of the sections especially when it causes serious prejudice to the applicantaccused.
8. This court also in Mamta v. State of Delhi, 2021 SCC OnLine Del 4570 has stated that
“17. A holistic reading of Sections 41, 42 and 43 of the NDPS Act would show that only an empowered officer, being an officer superior in rank to a peon, sepoy or constable, has been authorised with power of entry, search, seizure and arrest. Even Section 50 of the NDPS Act refers to such an officer. The Supreme Court in unequivocal terms has held that the provisions of Sections 41 and 42, as regards authorization and recording of information, are mandatory in nature and only an empowered officer as enumerated in Sections 41(2) and Section 42(1) of the NDPS Act can act under the provisions thereof. Section 41(2) of the NDPS Act further provides that the empowered officer may authorise his subordinate, who in turn, has also to be superior in rank to a peon, sepoy or a constable. Section 43 of the NDPS Act too uses the expression „officer‟ and provides for search of a person to be conducted by an officer of departments mentioned in Section 42. From the foregoing, it is apparent that the expression „officer‟, whether empowered, authorised or subordinate, has to be necessarily read to mean a person who is above the rank of a peon, sepoy
ARORA or a constable.
19. I also deem it expedient to take note of the decision in
Chhotu v. State of Maharashtra reported as 1994 SCC OnLine Bom 331, where in a case involving search of an accused/suspect for an offence punishable under the NDPS Act,
J. V.S. Sirpurkar (as his Lordship then was) held that there was total non-compliance of the provisions of the Act as the search of the accused person was conducted by a police constable.
20. There is no gainsaying that if the law requires an act to be done in a particular manner, that act has to be done in that manner, or not done at all [Refer: Taylor v. Taylor reported as [L.R.] 1 Ch. 426, Nazir Ahmad v. The King-Emperor reported as 1936 SCC OnLine PC 41, State of Uttar Pradesh v. Singhara Singh reported as (1964) 4 SCR 485, Chandra Kishore Jha v. Mahavir Prasad reported as (1999) 8 SCC 266, Dhanajaya Reddy v. State of Karnataka reported as (2001) 4 SCC 9, and Dipak Babaria v. State of Gujarat reported as (2014) 3 SCC 502]
9. The combined reading of Section 50 (1) and (4) makes out that the search of a female can be conducted by a female authorized under section 42 of NDPS Act and search by any other person will vitiate the recovery.
10. In the present case, I am of the opinion, the prosecution was not able to prove that the search and recovery of the applicant has been done by the authorised female officer. The status report does not advert to the allegations made about non-compliance of the statutory stipulations of Sections 42 and 50 of the NDPS Act.
11. The respondents were statutorily required to comply with the mandate of sections 42 and 50, and the same has not been done. As a result, there is patent illegality in the case of the prosecution and the illegality cannot be cured.
12. In Karnail Singh v. State of Haryana, (2009) 8 SCC 539, the Supreme ARORA Court has observed:
“6. The NDPS Act prescribes stringent punishment. Hence, a balance must be struck between the need of the law and the enforcement of such law on the one hand and the protection of citizens from oppression and injustice on the other. This would mean that a balance must be struck in. The provisions contained in Chapter V, intended for providing certain checks on exercise of powers of the authority concerned, are capable of being misused through arbitrary or indiscriminate exercise unless strict compliance is required. The statute mandates that the prosecution must prove compliance with the said provisions.”
13. NDPS act prescribes stringent punishments. The mandatory provisions and inbuilt safeguards lend fairness to the procedure of recovery and seizure. To leave these question for trial would thus amount to travesty of justice
14. Section 42 and section 50, thus is to prevent false implication of an innocent person. It lends certain fairness to the procedure of recovery and seizure. In the present case, the procedure prescribed under Sections 42 and 50 of the NDPS Act was not followed by the prosecution.
15. I am prima facie satisfied that there are reasonable grounds for believing that the applicant is not guilty of such offence and she is not likely to commit any offence while on bail. The applicant was arrested on 16.06.2021. Hence, I also take into consideration the period of detention undergone. Having considered all the relevant aspects, I am of the view that the applicant can be enlarged on bail on conditions as follows: a) The applicant shall furnish a personal bond in the sum of Rs. 10,000/- (Rupees Ten Thousand Only) each with 01 surety in the like amount, to the satisfaction of the trial Court; ARORA b) The applicant shall not leave the country and if the applicant has a passport, she shall surrender the same to the trial Court; c) The applicant shall furnish to the IO/SHO concerned her cellphone number on which the applicant may be contacted at any time and shall ensure that the number is kept active and switched-on at all times; d) The applicant shall not indulge in any act or omission that is unlawful, illegal or that would prejudice the proceedings in pending cases, if any; e) The applicant or her family members/relatives/friends will not tamper with the evidence of the case in any way.
16. Before concluding, it is made clear that these prima facie observations are made for the limited purpose of deciding this bail application and any opinion expressed above shall not be regarded as an opinion on merits during trial.
17. The bail application along with other applications, if any, is disposed of.
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