Allowed

Gopal S/O Dagdu Mundale v. the State of Maharashtra Thr. Pso Ps State Excise, Flying Squad, Buldhana Tq. and Dist. Buldhana

Bombay HC20 Aug 2024BA/481/2024

Case brief

AI extract

What is this about?

The Court granted bail to the applicant in an NDPS case due to total non-compliance of Section 42(1) regarding recording information in writing, holding that strict adherence is required for stringent offences.

What did the court decide?

Bail granted on executing a Personal Bond of Rs. 50,000/- with one solvent surety.

What the court decided

Gopal S/O Dagdu Mundale Vs the State of Maharashtra Thr. Pso… — Narcotics (NDPS) | Bombay HC (2024)

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2024:BHC-NAG:9167

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271 ba481.24

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR

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CRIMINAL APPLICATION (BA) NO.481/2024
Gopal s/o Dagdu Mundale

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..vs..

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The State of Maharashtra, through PSO PS State Excise, Flying Squad, Buldhana, Tahsil and District Buldhana

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...............................................................………………........................................………………………................................……………
Office Notes, Office Memoranda of Coram,
appearances, Court orders or directions Court's or Judge's Order
and Registrar's orders

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Shri N.B.Kalwaghe, Counsel for the Applicant.
Shri C.A.Lokhande, Additional Public Prosecutor for the State.

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CORAM : URMILA JOSHI-PHALKE, J. CLOSED ON : 13/08/2024 PRONOUNCED ON : 20/08/2024

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The applicant arrested on 20.12.2023 seeks regular bail in connection with Crime No.350/2023 registered with the non-applicant/ police station for offences punishable under Section 20(a), 20(b)(i)(ii), and 20(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act).

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Informant, serving with the State Excise Department, received a secret information that the applicant had cultivated “Opium” in his agricultural field. The informant and other raiding party members conducted a raid along with Talathi and Panchas. On conducting the raid, “Opium”, dry as well as wet plants were

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.....2/-

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271 ba481.24

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found. The said plants were uprooted and seized weighting 32.40
kilograms. At the time of the raid, the applicant was also found
and he was arrested.

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Heard learned counsel Shri N.B.Kalwaghe for the applicant and learned Additional Public Prosecutor Shri C.A.Lokhande for the State.

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Learned counsel for the applicant submitted that there is total non-compliance of Section 42 of the NDPS Act. The information received ought to have been reduced into writing as required by Section 42(1) of the NDPS Act, which has not been done and, therefore, the prosecution case is doubtful. He further submitted that wet and dry “Ganja Plants” were not segregated. The leaves and stems were also not segregated and the same were collectively weighed. The procedure followed by the investigating officer is contrary to provisions of the NDPS Act. As such, he prays that the application be allowed and the applicant be released on bail.

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In support of his contentions, learned counsel for the applicant placed reliance on following decisions:

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.....3/-

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271 ba481.24

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1. Dnyaneshwar Jagan Rajale (Dhangar) vs. State of
Maharashtra, reported in 2021 SCC OnLine Bom
5013;

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2. Sholadoye Samuel Joy vs. State of Maharashtra,
reported in 2022 SCC OnLine Bom 142,

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3. Dattu Shankar Shinde vs. State of Maharashtra and
anr, reported in 2022 SCC OnLine Bom 8862.

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Learned Additional Public Prosecutor for the State

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strongly opposed the application and submitted that letter
addressed by the informant to the Superintendent of State Excise
Department sufficiently shows that there is compliance of Section
42 of the NDPS Act.

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In support of his contentions, learned Additional Public Prosecutor for the State placed reliance on following decisions:

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1. Mukesh Rajaram Chaudhary vs. The State of
Maharashtra, reported in 2023 SCC OnLine Bom
2096, and

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2. Karnail Singh vs. State of Haryana, reported in
(2009)8 SCC 539.

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Section 42 of the NDPS Act requires officer who

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receives information to reduce it into writing. In terms of Section

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.....4/-

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271 ba481.24

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42(2) of the NDPS Act, information taken down in writing has to
be sent to official superior of the said officer.

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In the case at hand, admittedly, the information received by the informant was not reduced into writing.

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The Honourable Apex Court in the case of Karnail Singh supra, has held as under:

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“In conclusion, what is to be noticed is Abdul Rashid
did not require literal compliance with the
requirements of Section 42(1) and 42(2) nor did
Sajan Abraham hold that the requirements of 42(1)
and 42(2) need not be fulfilled at all. The effect of the
two decisions was as follows :

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(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
concerned Register and forthwith send a copy to his
immediate official superior, before proceeding to take
action in terms of clauses (a) to (d) of 42(1).

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(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

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.....5/-

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271 ba481.24

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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 42(1) and thereafter, as soon as it is practical,
record the information in writing and forthwith
inform the same to the official superior.

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(c) In other words, the compliance with the
requirements of 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 postponed by a reasonable period, that is
after the search, entry and seizure. The question is
one of urgency and expediency.

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(d) While total non-compliance of requirements of
sub-sections (1) and (2) of Section 42 is
impermissible, delayed compliance with satisfactory
explanation about the delay will be acceptable
compliance of 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

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.....6/-

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271 ba481.24

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action, or non-sending 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 42 by Act 9 of 2001.”

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From the decision of the Karnail Singh supra, it is clear that total non-compliance is not, but delayed compliance is permissible. The Honourable Apex Court held that 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

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.....7/-

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271 ba481.24

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emergent situations, the recording of the information in writing
and sending a copy thereof to the official superior may get
postponed by a reasonable period, that is after the search, entry
and seizure. The question is one of urgency and expediency.

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In the present case, it is not in dispute that there is total non-compliance of Section 42(1) of the NDPS Act. The officer who received the information has not received it into writing at all. When an information is not received into writing, question of sending the same does not arise. The informant has also informed the Superintendent that he has conducted raid and contraband article was found and the same has been seized. This is not the compliance contemplated by provisions of Section 42(1) of the NDPS Act. The punishment provided for offences under the NDPS Act are stringent and, therefore, compliance of provisions of the NDPS Act is to be adhered strictly.

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In this view of the matter, the applicant has made out a case for grant of bail and, therefore, following order is passed:

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ORDER

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(1) The criminal application is allowed.

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.....8/-

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271 ba481.24

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(2) In connection with Crime No.350/2023 registered with the
non-applicant/ police station for offences punishable under
Section 20(a), 20(b)(i)(ii), and 20(c) of the Narcotic Drugs and
Psychotropic Substances Act, 1985, the applicant be released on
bail on his executing a P.R.Bond in the sum of Rs.50,000/- with
one solvent surety of the like amount.

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(3) The applicant shall not directly or indirectly make any
inducement and threat or promise to any persons acquainted with
facts of the present case.

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(4) The applicant shall attend each and every date of trial before
the Sessions Court without seeking any exemption, unless there
are exceptional circumstances.

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Application stands disposed of .

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URMILA JOSHI-PHALKE, J.)

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!! BrWankhede !!

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...../-

Gopal S/O Dagdu Mundale v. the State of Maharashtra Thr. Pso Ps State Excise, Flying Squad, Buldhana Tq. and Dist. Buldhana

Case brief

What is this about?

What did the court decide?

What the court decided

Gopal S/O Dagdu Mundale v. the State of Maharashtra Thr. Pso Ps State Excise, Flying Squad, Buldhana Tq. and Dist. Buldhana

Case brief

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What did the court decide?

What the court decided

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