The High Court
Case Details
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.8586 of 2024 Rabin Tyagi@ Ravin Tyagi …. Petitioner Mr. Shyam Manohar, Advocate -Versus- State of Odisha …. Opposite Party Mr. P.K. Ray, AGA CORAM: JUSTICE R.K. PATTANAIK DATE OF ORDER:19.02.2025 1. Instant petition under Section 483 BNS is pressed into service for release of the petitioner on bail in connection with Malkangiri P.S. Case No.167 of 2023 registered under Sections 20(b)(ii)(C), 25 and 29 of the NDPS Act corresponding to G.R. Case No.90 of 2023 pending in the file of learned Sessions Judge-cum-Special Judge, Malkangiri on the grounds stated therein. 2. Heard Mr. Manohar, learned counsel for the petitioner and Mr. Ray, learned AGA for the State. 3. The release of the petitioner is pleaded principally on the following grounds, such as: (i) nowhere, in the F.I.R., it is mentioned that the Executive Magistrate and so-called independent BLAPL No.8586 of 2024 Page 1 of 11 witnesses arrived at the spot for the alleged search and seizure; nor their names indicated therein, hence, the investigation appears to be tainted; (ii) investigation has not revealed the source and destination of the seized contraband Ganja; (iii) inasmuch as, no custodial interrogation has been resorted to nor any statement under Section 67 of the NDPS Act was recorded and only upon an inference drawn, the petitioner has been implicated being an outsider; (iv)the remand of the petitioner is in complete disregard to the Constitutional mandate guaranteed under Article 22 and the dictum of the Apex Court in Prabir Purkayastha Vs. State (NCT of Delhi) in SLP (Crl.) No. 42896 of 2023; (v) prior information was not reduced into writing and ever informed to the immediate superior officer not being borne out of the record and hence, there is no compliance of Section 42 of the NDPS Act a statutory requirement; (vi) complete infraction of Section 50 of the NDPS Act as the personal search of the petitioner was not conducted in terms thereof; BLAPL No.8586 of 2024 Page 2 of 11 (vii)the sample of the contraband was not properly resealed and hence, Section 55 of the NDPS Act is not complied with; (viii)the petitioner is having no similar antecedent; and lastly, (ix)inference under Section 114(g) of the Indian Evidence Act is to be drawn against the prosecution as there is no material on record to show the CDR details annexed to the chargesheet, at least, to establish the presence of the petitioner at the alleged place of search and seizure.
Legal Reasoning
the same is not prima facie proved. Rather, there is material to show and suggest about the statutory compliances before and at the time of search and seizure, which finally led to the recovery of contraband Ganja of 475 Kgs. The decision of this Court in Raghu @ Rahul Rajput Thakur Vrs. State of Odisha AIRONLINE 2022 ORI 102 shall have to be read as and in the context that there has been no compliance of Section 50 of the NDPS Act at all. At the cost of repetition, it is held and concluded that patent lapses clearly and conspicuously evident from the record without any scrutiny of materials, if leads to an irresistible conclusion regarding any such statutory and mandatory non-compliance, the same is considered fatal and would be ground for bail in view of bleak chance of conviction at the end. If such is not the case and there is some evidence to reveal compliances, challenge BLAPL No.8586 of 2024 Page 10 of 11 to the same at the threshold cannot be entertained and shall be a subject of trial. To finally conclude, even though, the F.I.R. is not in great details but materials on record do suggest compliances at least prima facie and hence, the case of the petitioner does not fall in the category of any such serious lapses apparent on the face of the record. 12. The other grounds, according to the Court, are again to be examined during trial and cannot, therefore, be considered at this stage, while dealing with the request for bail. Hence, it is ordered. 13. In the result, the bail petition stands rejected for the reasons stated herein above. (R.K. Pattanaik) Judge Balaram Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Reason: Authentication Location: OHC, CTC Date: 20-Feb-2025 18:30:18 BLAPL No.8586 of 2024 Page 11 of 11
Arguments
4. Mr. Manohar, learned counsel for the petitioner would submit that the report was lodged and a case stood registered on 26th March, 2023 at about 3.40 P.M., whereas, the alleged detection was held at 11.40 A.M. and therefore, the details of the Executive Magistrate and independent witnesses claimed to be present at the spot with their names should have been reflected in the F.I.R. It is submitted that all such formalities were concluded at about 2.30 P.M. and at last, the F.I.R. was drawn and lodged at 3.40 P.M., therefore, all details regarding the search and seizure were to be mentioned therein. Mr. Manohar, learned counsel further submits that there has been non-compliance of Sections 42 and 50 of the NDPS Act, as after the information was received, the paraphernalia necessary to reduce such information into writing with an intimation to the superior authority was not complied with nor was the petitioner given any option to be BLAPL No.8586 of 2024 Page 3 of 11 searched in the immediate presence of the Executive Magistrate since not described in the F.I.R. In such view of the matter, it is finally contended by Mr. Manohar, learned counsel that as the fundamental procedure has not been followed vis-à-vis search and seizure and even from the inception, the petitioner, though an outsider but for having no other similar criminal antecedent, should be granted bail. 5. In course of hearing, Mr. Manohar, learned counsel for the petitioner referred to the following decisions, such as, Manish Sisodia Vrs. Directorate of Enforcement decided on 9th August, 2024 in SLP(Criminal) No.8781 of 2024; Directorate of Enforcement Vrs. Subhash Sharma in SLP (Criminal) No.1136 of 2023 dated 21st January, 2025; Boota Singh & others Vrs State of Haryana (2021) 19 SCC 606 to contend that the search and seizure have not been conducted in the manner as prescribed under law and in view of non-compliance of Sections 42 and 50 of the NDPS Act, the petitioner, who is in custody, since the date of arrest, should be allowed to go on bail with conditions. 6. Mr. Ray, learned AGA for the State, on the other hand, strongly objects to the release of the petitioner on bail on the ground that the commercial quantity of contraband Ganja is seized. It is further submitted that the materials on record and in particular, the F.I.R. indicates that information with regard to the illicit transportation of Ganja was noted down at the P.S. and intimated to the superior and hence, there is compliance of Section 42 of the NDPS Act. In fact, it is BLAPL No.8586 of 2024 Page 4 of 11 contended that the search and seizure was held at a public place, hence, Section 43 of the NDPS Act would apply, nevertheless, due compliance of Section 42 has been made and the same cannot be a ground to demand release of the accused. Furthermore, Mr. Ray, learned AGA for the State submits that even there is compliance of Section 50 of the NDPS Act as the petitioner was allowed an option to be searched in the immediate presence of an Executive Magistrate, as the same is borne out of record and therefore, such claim is incorrect. With the above submission, Mr. Ray, learned AGA contends that the petitioner since found at the spot at the time of search and seizure and resulted in recovery of huge quantity of contraband Ganja, he should not be allowed to go on bail. 7. As per Section 42 of the NDPS Act, search, seizure and arrest may be carried out by any such Officer with the designation described therein, if he has the reason to believe from personal knowledge or information received in respect of an offence punishable under the Act has been committed and in view of Sub-Section(2) thereof, is to record the information in writing or grounds of belief and to transmit a copy of the same to his immediate superior. In so far as Section 43 of the NDPS Act is concerned, it is with regard to seizure in any public place and as per Explanation appended thereto, it shall include any public conveyance, hotel, shop or other place intended for use by or accessible to the public. In the case at hand, the recovery and seizure have taken place with the recovery from a private vehicle at a time and in the BLAPL No.8586 of 2024 Page 5 of 11 manner revealed and therefore, as rightly, pointed out by Mr. Manohar, learned counsel, Section 42 of the NDPS Act to apply, hence, the need for compliance of Sub-Section (2) thereof. In fact, the expression ‘public place’ as per the Explanation to Section 43 includes only public conveyances or such other paces including a hotel, shop or places accessible to the public. Hence, Section 43 of the NDPS Act is inapplicable to the present case. So, therefore, the contention of Mr. Ray, learned AGA that Section 43 of the NDPS Act is applicable with reference to the Apex Court in Karnail Singh Vrs. State of Haryana (2009) 3 SCC (Crl.) 887 is of no substance. 8. In Hamidbhai Azambhai Malik Vrs. State of Gujarat (2009) 1 Supreme 332, it is held by the Apex Court that when any such information or intimation or knowledge comes to the notice of the officer in course of regular patrolling, it is not necessary to follow and comply the statutory requirement of Section 42 of the NDPS Act. In the instant case, the informant and other police officials were on duty and at about 8.20 A.M. information was received from reliable source regarding transportation of Ganja in a container, whereafter, all of them proceeded to the spot and intercepted the same at about 8.45 A.M. In such view of the matter, it is not that in course of regular patrolling or investigation in some other case that the information was received. In any case, the informant received the information from some source and therefore, it is to be held that Section 42(2) of the NDPS Act is needed to be complied with. On a BLAPL No.8586 of 2024 Page 6 of 11 reading of the F.I.R. and materials on record including the statement of the informant, it is made to understand that necessary information was shared with the I.I.C. of the P.S. for further intimation to the superior as per Section 42 of the NDPS Act. The contention of Mr. Manohar, learned counsel for the petitioner is that there is no mention with regard to any such compliance in the F.I.R. But from the very statement of the informant under Section 161 Statement, such compliance of Section 42(2) of the NDPS Act is claimed, so to say. Mr. Ray, learned AGA for the State stoutly denies any such non-compliance. The intimation to the superior with regard to the information as per Section 42(2) of the NDPS Act since claimed and denied, the same is, however, made to suggest from the record, notwithstanding, absence of any such details in the F.I.R. It is a settled position of law that compliance of Section 42(2) of the NDPS Act cannot be avoided and in case of default, it would be a serious lapse and the same cannot be condoned. Though in the F.I.R., the information and further intimation to the superior after being taken down within 72 hours is not described in very many words, to jump to a conclusion about non-compliance of Section 42(2) of the NDPS Act would not be right and justified. All such claim regarding compliance in terms of Section 42 of the NDPS Act is to be gone through and duly examined in course of trial. At present, since there is material on record suggestive of the fact about compliance with the intimation being given to the I.I.C of the concerned P.S. and shared with the superior officer about the alleged BLAPL No.8586 of 2024 Page 7 of 11 information, the Court is not inclined to hold any such non- compliance of Section 42(2) of the NDPS Act. 9. Regarding non-compliance of Section 50 of the NDPS Act, the same is again a statutory requirement. It is contended by Mr. Manohar, learned counsel for the petitioner that there is no whisper in the F.I.R. that the petitioner was ever apprised about his legal right under Section 50 of the NDPS Act. Admittedly, the search and recovery has been made during and in course of which some cash and Aadhar Card were recovered from the petitioner. The contention is that the petitioner would have been given the option, whether, to be searched in presence of an Executive Magistrate or a Gazetted Officer, which has not been sincerely followed. According to Mr. Ray, learned AGA for the State, the option was given to the petitioner as per the Section 50 of the NDPS Act referring to a copy of the notice dated 26th March, 2023. It is informed to the Court by Mr. Ray, learned AGA that there is due compliance at the time of personal service, which has been held in the immediate presence of an Executive Magistrate with an option offered to the petitioner. 10. Considering such notice dated 26th March, 2023, it is made to reveal that at the time of personal search, the petitioner was made aware of his statutory right in presence of a Gazetted Officer. To claim that there is no compliance of Section 50 of the NDPS Act with the contention that the same is not described in the F.I.R. is unacceptable. Of course, the vehicle was intercepted in the morning hours and at last, the BLAPL No.8586 of 2024 Page 8 of 11 F.I.R. was drawn at about 2.30 P.M. and all such details were required to be mentioned therein but by claiming that such compliance under Section 50 of the NDPS Act is not specifically stated therein, in the considered view of the Court, is not sufficient to allege infraction of law. 11. Mr. Manohar, learned counsel for the petitioner submits that the bail should be the rule and jail is an exception as repeatedly held in catena of decisions by the Apex Court including in the case of Manish Sisodia (supra). In a case registered by the E.D. and investigated upon by the CBI alleging irregularities in the framing and implementation of Delhi Excise Policy for the year 2021-22, it has been held by the Apex Court that the rule should be bail and not jail in the facts and circumstances of the case and considering the materials and the fact that CBI had filed the chargesheet after closure of the investigation with the ED having filed a complaint under Section 3 of the PMLA. The Apex Court was of the view that the petitioner therein should be granted bail with conditions. However, in the instant case, the Court, having regard to the quantity of contraband Ganja seized at the spot and in the presence of the petitioner, is of the view that no case for bail is made out. As far as the other grounds are concerned, the Court is of the further view that innocence or otherwise of the petitioner for any such non-compliance shall have to be gone into during trial. To reiterate, it is held that no case of non-compliance of Sections 42(2) and 50 of the NDPS Act is established. Rather, the Court finds that due intimation was given to the IIC of the P.S. and further BLAPL No.8586 of 2024 Page 9 of 11 communicated to the superior in compliance of Section 42 of the NDPS Act though details of such exercise is not revealed or described in the F.I.R. but borne out of record. It is rather to be believed that there is proper compliance considering the entire materials on record. Likewise, the personal search of the petitioner was conducted in terms of Section 50 of the NDPS Act and the same is also proved from the record with an option given to him in that regard in presence of the witnesses. If any case, there is glaring error or lapse apparent on the face of the record to show that there is no compliance of Sections 42 and 50 of the NDPS Act upon considering the materials, it would certainly be a gross illegality on account of any such non-compliance but in the case of the petitioner,