Mr. J.S. Bedi, learned senior counsel assisted by Mr. S.S. Brar, Advocate appearing for the petitioner inter alia would raise a question regarding non-compliance of Section 42(1) of the NDPS Act, apart from raising an argument that there was a total non-compliance of proviso to Section 42(1) of the NDPS Act. It is argued that the FIR, which was registered on 10.03.2020 at 23:34 hours talks of setting up a naka bandi to apprehend one Pargat Singh @ Kaka son of Raj Singh (petitioner herein) and his accomplice Ramandeep @ Sona Singh son of Jagbtar Singh, who were travelling in a vehicle bearing No.HR-94-8235 make Hyundai i-20 and were in possession of heroin which was brought from Delhi. It is further argued that as per Section 42(1) of the NDPS Act, the relevant information is to be sent to an immediate superior, which was not done in the instant case as information was sent by Sub Inspector of CIA Staff Sirsa to the SHO, Police Station Ding. It is also argued that to cover up the lacuna, another notice under Section 42 of the Act was sent by the same official to DSP, Allenabad. It is further argued that raid was conducted at 8 PM, which is past sunset and therefore, proviso to Section 42(1) of the NDPS Act would also be applicable in so far as the officer concerned was to record his reasons as to why search warrant and authorization could not be obtained. In support of his argument, he would rely on judgment rendered by the Hon'ble Supreme Court in State of Rajasthan Vs. Chhagan Lal 2014 (4) RCR (Criminal) 559. It is also argued that recovery of 500 grams of heroin from two persons has to be taken into account and conscious possession would be distributed equally.
