Supreme Court sets aside Allahabad High Court order directing NCB to compensate NDPS accused under Section 439 of CrPC

In Union of India Through I.O. Narcotics Control Bureau v. Man Singh Verma 2025 INSC 292, Supreme Court's Division Bench of Justice Sanjay Karol and Justice Manmohan concluded: "we accept the submission of the Union of India that grant of compensation to the tune of Rs.5,00,000/- was without the authority of law. The order of the High Court, therefore, to this extent has to be set aside. Ordered accordingly. Appeal is allowed partly. The observations made hereinabove should not be taken to preclude any remedy that may be available to the respondent as per law. Hence, our observations are limited only to the correctness of the grant of compensation in the adjudication of a bail application."

It observed: "It is a settled principle of law that the jurisdiction conferred upon a Court under Section 439 CrPC is limited to grant or refusal of bail pending trial. In the following decisions, this Court has time and again held that the sphere of consideration, when exercising power under this Section, pertains only to securing or restricting liberty of the person in question." 

The Allahabad High Court had asked the Director of Narcotics Control Bureau (NCB) to pay a sum of Rs 5 lakh as compensation to the respondent for the alleged wrongful confinement. NCB had challenged the impugned order of the High Court.

The Court took note of the decision in Kalyan Chandra Sarkar vs. Rajesh Ranjan (2004), wherein it was observed that at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of a case need not be undertaken. 

In State vs. M.Murugan (2020)15 SCC 251, Supreme Court reiterated that the Court’s jurisdiction is limited to grant or refusal to grant bail, pending trial. In this case, the High Court, while taking a decision on bail application, had retained the file and directed the State to form a committee and seek its recommendations on the reformation and rehabilitation of convict/accused persons. The Court held that while ordering such directions the High Court has committed grave illegality and held that the jurisdiction under Section 439 CrPC ends when the bail application is finally decided. The Court held as under :-

“11. We find that the learned Single Judge [M. Murugesan v. State, 2019 SCC OnLine Mad 12414] has collated data from the State and made it part of the order after the decision [M. Murugesan v. State, Criminal Original Petition No. 1618 of 2019, order dated 18-2-2019 (Mad)] of the bail application, as if the Court had the inherent jurisdiction to pass any order under the guise of improving the criminal justice system in the State. The jurisdiction of the court under Section 439 of the Code is limited to grant or not to grant bail pending trial. Even though the object of the Hon'ble Judge was laudable but the jurisdiction exercised was clearly erroneous. The effort made by the Hon'ble Judge may be academically proper to be presented at an appropriate forum but such directions could not be issued under the colour of office of the court.”

Section 439 of CrPC reads: “439. Special powers of High Court or Court of Session regarding bail.—(1) A High Court or Court of Session may direct,— (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; 

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: 

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. 

Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section376DB of the Indian Penal Code (45 of 1860), give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.

(1A) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under subsection (3) of section 376 or section 376AB or section 376DA or section DB of the Indian Penal Code (45 of 1860).] 

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.”

The Division Bench added:"The undue restriction of liberty, i.e., without the backing of procedures established by law is unquestionably an affront to a person’s rights but the avenues to seek recourse of law in connection therewith are limited to remedies as per law. However, none was availed in the present facts”. 

It stated, “As such, we accept the submission of the Union of India that grant of compensation to the tune of Rs.5,00,000/- was without the authority of law. The order of the High Court, therefore, to this extent has to be set aside. Ordered accordingly. Appeal is allowed partly.” The judgement was authored by Justice Karol and delivered on February 28, 2025. 

In the case in question, the NCB had seized 1280 grams of brown powder (allegedly heroin) from the possession of one Man Singh Verma (respondent herein) and one Aman Singh. A Criminal Case was registered against the respondent under Sections 8(C), 21 and 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. While awaiting the results of the samples from the laboratory, the respondent filed an application seeking bail but the same was rejected. Consequently, the respondent approached the High Court. The Central Revenue Control Laboratory's report showed that the sample tested negative for heroin and other narcotic substances.

The report from Central Forensic Science Laboratory, Chandigarh revealed that the second set of samples also tested negative for any narcotic substance. The NCB filed a closure report before the Special Judge, NDPS, pursuant to which the respondent was released from the District Jail. 

Unmindful of the respondent’s release, the High Court had proceeded to adjudicate the pending bail application and, by the impugned order, observed that the respondent was a young person who had been wrongfully confined for four months despite the initial laboratory finding. The High Court had directed the Director, NCB to pay Rs.5,00,000 as compensation to the respondent. 

The fact remains the principle of awarding compensatory relief for the violation of fundamental rights by public officials was recognized in Rudal Sah vs. State of Bihar (1983) 4 SCC 141; Nilabati Behera vs. State of Orissa (1993) 2 SCC 746; and D.K. Basu v. State of West Bengal (1997) 1 SCC 416 under Article 32 of the Constitution of India. 

Supreme Court elaborates on scope of exercise of power under Section 227, Cr.P.C, sets aside High Court's judgement in NDPS case

The appellant was accused of commission of offence under Section 27(a) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. After the investigation, a final report was filed against all the accused including the the appellant herein (accused No.13) was charge sheeted only for offence under Section 27(b) of the NDPS Act. The order dated September 14, 2022 passed by Madras High Court filed against the order dated July 26, 2022 passed by the Additional District Judge (ADJ)-Special Court under Essential Commodities Act Cases, Coimbatore under Section 227 of the Code of Criminal Procedure (Cr.P.C.), 1973 to discharge him. As per the order dated July 26, 2022, the application for discharge filed by the appellant was dismissed. The Revision Petition filed against it was also dismissed.

While hearing the appeal, the Supreme Court's bench of Justices C.T. Ravikumar and  Rajesh Bindal dwelt on the scope of exercise of power under Section 227, Cr.P.C. It drew on the Court's decision  in P. Vijayan v. State of Kerala & Anr.(2010). The Court held:Before considering the merits of the claim of both the parties, it is useful to refer to Section 227 of the Code of Criminal Procedure, 1973, which reads as under:
“227. Discharge. — If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.” If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words “not sufficient ground for proceeding against the accused” clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts.

The Court observed: "At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.” 

The Court also drew on Court's decision in Sajjan Kumar v. Central Bureau of Investigation (2010) to consider the scope of Section 227, Cr.P.C. 

The Court observed: "The position of law enunciated in the said decisions would reveal that while calling upon to exercise the power under Section 227, Cr.P.C., the judge concerned has to consider only the record of the case and the documents produced along with the same. If on such consideration the court forms an opinion that there is no sufficient ground to proceed against the accused concerned, he shall be discharged after recording the reasons therefor. It is also evident from the precedence on the aforesaid question that while exercising the said power, the Court could sift the materials produced along with the final report only for the purpose of considering the question whether there is ground to proceed against the accused concerned."

The Court's judgement concluded that the appeal is allowed and the order passed by the Madras High Court filed against the order passed by the ADJ are quashed and set aside. As a necessary sequel, the appellant who is accused in pending on the files of Additional District Judge-Special Court under Essential Commodities Act Cases, Coimbatore is discharged from the said case, by allowing the prayer of appellant for discharge.

Supreme Court quashes judgments, orders of High Court and Special Judge, Kurukshetra against Haryana IPS officer, Bharti Arora in NDPS case

Supreme Court's bench of Justices B.R Gavai, P.K Mishra and K.V. Viswanathan delivered a judgement on December 13, 2024 quashing the judgments and orders of High Court and Special Judge, Kurukshetra against Haryana IPS officer Bharti Arora in a proceedings initiated against the her for the offence punishable under Section 58 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The Special Judge had recorded the findings against the appellant as well as the other police officers without even issuing notice to them. Notably, on October 26, 2010, the Court had stayed the High Court's judgment and order which had refused to interfere with the Special Judge, Kurukshetra and upheld the order dated May 30, 2008. The High Court's order dated May 19 2008 had refused to entertain the revision with the observation that the order passed by the learned Special Judge should not be construed as an expression of opinion on the merits of the matter.

Justice Gavai who has authored the 39-page long judgement observed that the Special Judge had acted in a predetermined manner. The "Special Judge had given a complete go-bye to all the principles of natural justice. It is a well-settled principle of law that justice should not only be done but should be seen to be done." He underlined that the "Special Judge could not have conducted the proceedings against the present appellant for the offence punishable under Section 58 of the NDPS Act inasmuch as such proceedings could have been conducted only by a Magistrate. Undisputedly, the procedure as required under Chapter XX i.e. Sections 251 to 256 of the Cr.P.C. has also not been followed." 

He recalled the Court's decision in State of West Bengal and Others v. Babu Chakraborthy (2004) 12 SCC 201 : 2004 INSC 492. In this case, the accused persons were convicted for an offence punishable under the NDPS Act. In the appeal preferred by them, while allowing the appeal, the High Court made several strictures and observations against two officers of the West Bengal Police in an IPS Cadre. In the said case also, the allegations against the said officers were with regard to violation of provisions of Section 42 of the NDPS Act. The Court observed:"In our view, the High Court was not justified and correct in passing observations/strictures against Appellants 2 and 3 without affording an opportunity of being heard, and it is in violation of a catena of pronouncements of this Court that harsh or disparaging remarks are not to be made against the persons and authorities whose conduct comes into consideration before courts of law unless it is really necessary for the decision of the case. Likewise, the directions issued by the High Court to the trial court to lodge a complaint to the Magistrate having jurisdiction for prosecuting Appellants 2 and 3 for having committed an offence under Section 58 of the Act read with Sections 166 and 167 of the Penal Code, 1860 is not warranted. The observations made by the High Court are liable to be expunged and accordingly."

It cited the following passage from Jackson’s Natural Justice (1980 Edn.). It reads: “The distinction between justice being done and being seen to be done has been emphasised in many cases. . . .The requirement that justice should be seen to be done may be regarded as a general principle which in some cases can be satisfied only by the observance of the rules of natural justice or as itself forming one of those rules. Both explanations of the significance of the maxim are found in Lord Widgery, C.J.'s judgment in R. v. Home Secretary [(1977) 1 WLR 766, 772] , ex. p. Hosenball, where after saying that “the principles of natural justice are those fundamental rules, the breach of which will prevent justice from being seen to be done” he went on to describe the maxim as “one of the rules generally accepted in the bundle of the rules making up natural justice”. It is the recognition of the importance of the requirement that justice is seen to be done that justifies the giving of a remedy to a litigant even when it may be claimed that a decision alleged to be vitiated by a breach of natural justice would still have been reached had a fair hearing been given by an impartial tribunal. The maxim is applicable precisely when the court is concerned not with a case of actual injustice but with the appearance of injustice or possible injustice. In Altco Ltd. v. Sutherland [(1971) 2 Lloyd's Rep 515] Donaldson, J., said that the court, in deciding whether to interfere where an arbitrator had not given a party a full hearing was not concerned with whether a further hearing would produce a different or the same result. It was important that the parties should not only be given justice, but, as reasonable men, know that they had had justice or “to use the time hallowed phrase” that justice should not only be done but be seen to be done. In R. v. Thames Magistrates' Court, ex. p. Polemis [(1974) 1 WLR 1371] , the applicant obtained an order of certiorari to quash his conviction by a stipendiary magistrate on the ground that he had not had sufficient time to prepare his defence. The Divisional Court rejected the argument that, in its discretion, it ought to refuse relief because the applicant had no defence to the charge. It is again absolutely basic to our system that justice must not only be done but must manifestly be seen to be done. If justice was so clearly not seen to be done, as on the afternoon in question here, it seems to me that it is no answer to the applicant to say: ‘Well, even if the case had been properly conducted, the result would have been the same. That is mixing up doing justice with seeing that justice is done (per Lord Widgery, C.J. at p. 1375).”

The Court observed that the Special Judge acted, without even giving notice to her, only on the basis of the arguments advanced at the stage of final hearing of the matter, made adverse observations against her by almost finding her guilty of the offence punishable under Section 58 of the NDPS Act. While doing so, neither any notice nor was any opportunity of being heard given to her.

Calcutta High Court detects error in the verdict of judge, Malda Special Court under NDPS Act, grants default bail upon expiry of 180 days

In re: An application for bail under Section 439 of the Code of Criminal Procedure, 1973 / Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 And in the matter of Idul Mia, the petitioner, the Calcutta High Court's division bench of Justices Arijit Banerjee and Apurba Sinha Ray granted default bail on the grounds that the chargesheet submitted against him was submitted without a forensic report, within the statutory limit of 180 days. The Court gave this decision while dealing with an application for bail in a case of offences under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The judgment was delivered on October 8, 2024. 

The petitioner was charged with offences punishable under Sections 21C/25/27A/29 of the NDPS Act, 1985. He was arrested on January 31, 2024. He submitted that he became entitled to statutory bail on the 181st day since the charge sheet that was submitted on the 177th day without the FSL report, is not a valid charge sheet. The FSL report was not submitted, whether by way of a supplementary charge-sheet or otherwise within 180 days. He had applied for default bail on the 183rd day. The prayer for bail was rejected by the learned Trial Court. Consequently, the petitioner approached the High Court with an application for bail.

The petitioner's advocate relied on the following decisions: -
(i) Judgment and order dated 25/08/2023 passed in Rakesh Sha v. State of West Bengal, CRM (NDPS) 552 of 2023, reported at 2023 SCC OnLine Cal 2463,
(ii) Judgment and order dated 17/01/2023 passed by a Full Bench of Calcutta Court in Subhas Yadav v. State of West Bengal, CRM 146 of 2021 reported at 2023 SCC OnLine Cal 313.

The Advocate for the petitioner pointed out that the issue as to whether or not a charge sheet without the FSL report in a NDPS case can be termed as an ‘incomplete Report’ under Section 173 Cr. P.C. is pending before the Supreme Court in the case of Mohd. Arbaz & Ors. v. State of NCT of Delhi, Petition(s) for Special Leave to Appeal (Crl.) No(s).8164-8166/2021.

Notably, Mohd. Arbaz's case  was filed in the Supreme Court on October 4, 2021 against Delhi High Court's decision of Justice Vibhu Bakhru dated November 3, 2020. It was registered on October 25, 2021, verified on October 26, 2021 and admitted on May 1, 2024. This case has been tagged with other cases from Delhi, Kerala, Haryana, West Bengal, Punjab and Gujarat. It is pending before the 3-Judge bench of Justices Surya Kant, Sudhanshu Dhulia and Ujjal Bhuyan. It was last listed on July 18, 2024.  In its order of July 18, the Court observed: "In this batch of cases, the primary issue that arises for consideration is as to whether a chargesheet without the FSL/Examiner’s Report in a NDPS case can be termed as an `incomplete Report’ under Section 173 Cr.P.C.? During the course of hearing, it so transpired that various other questions of paramount public importance, with regard to the fairness and efficacy of the trials under the NDPS Act, also need to be resolved. Some of these issues have also been formulated by one of the learned counsel for the petitioners. One such issue pertains to the establishment of adequate FSL/Examiner Laboratories by the State Governments along with appointment of requisite technical staff to operate such laboratories. It seems to us that issues such as the current status of the FSL/Examiner’s Laboratories, creation of a robust mechanism for submission of the FSL/Examiner’s Reports within the stipulated period and the issue pertaining to follow up action taken by the States in compliance of the directions issued by this Court in Union of India vs. Mohan Lal & Anr., (2016) 3 SCC 379, etc. would require indepth consideration by us. Consequently, we propose to hear all the States and the Union Territories before any effective directions are issued. We, therefore, direct the Registry to issue notices to the Union of India, all the States and the Union Territories, returnable on 29.08.2024....The orders granting interim bail to the petitioners shall continue to operate until further orders."

The High Court referred to the provisions of Section 36-A (4) of the NDPS Act. It reads: “36-A. Offences triable by Special Courts-(4) In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27-A or  for offences involving commercial quantity the references in sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973(2 of 1974) thereof to “ninety days”, where they occur, shall be construed as reference to “one hundred and eighty days”. Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of accused beyond the said period of one hundred and eighty days.”

It also referred to the relevant portion of Sections 167 (1) and (2) of the Code of Criminal Procedure, 1973. It reads: “167. Procedure when investigation cannot be completed in twenty-four hours. (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer-in-charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction : Provided that –(a) [the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding, - [Substituted by Act 45 of 1978, Section 13, for paragraph (a) (w.e.f. 18-12-1978).] (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;]” 

The Court observed: "We see that Section 167 prescribes the maximum period for which an accused can be remanded to judicial custody without charge sheet being filed. Section 36A(4) of the NDPS Act prescribes that reference to “90 days” in Section 167(2) Cr. P.C. shall be construed as reference to “one hundred and eighty days” for the purpose of NDPS cases. However, if investigation cannot be completed within the said period of 180 days, the Special Court may grant further time up to one year on the report of the public prosecutor indicating the progress of the investigation and the reasons for detaining the accused beyond the period of 180 days. Therefore, in an NDPS case, if charge sheet is filed within 180 days from the date of arrest of the accused, no right of statutory bail accrues in favour of the accused. The question is, what happens if the charge sheet is not accompanied by the Forensic Report? Would such a charge sheet satisfy the requirements of Section 36A (4) of the NDPS Act? On the aforesaid issue, there is divergence of opinion. A Division Bench of this Court in the case of Rakesh Sha (Supra) held that a charge sheet submitted within 180 days without the Chemical Examination Report with an observation that a supplementary charge sheet will be filed in future with the FSL report is beyond the contemplation of the proviso to Section 36A(4) of the NDPS Act. The Bench observed:- “filing of a charge-sheet without the Examination Report in relation to an offence under the NDPS Act is an exercise in futility and raises the presumption of the I.O filing a cipher only for the sake of closing the first window of the 180 days under the proviso to 36A(4) of the Act”.

The Division Bench had also observed: "The petitioner, before us, on the other hand, has been charged for commission of an offence under the NDPS Act which requires the Trial Court to take cognizance of the offence committed under the Act. This means that the CFSL/Laboratory Report becomes an essential and integral part of the investigation for establishing the charges under the NDPS Act. The Chemical Examination Report therefore becomes the most vital piece of evidence which is required to be made part of the charge-sheet.”

Notably, Advocate for the State had relied on a decision of a Single Judge of the Calcutta High Court in the case of Jagdish Singh v. The State of West Bengal and Anr., CRR no. 41 of 2024 dated July 18, 2024, in support of his submission that if the charge sheet contains details required under Section 173 Cr. P.C. and is filed within the period prescribed, it cannot be termed as incomplete in the absence of FSL report.

The High Court has noted that the case of Jagdish Singh was a criminal revisional application filed by the accused person for quashing of the charge sheet which was filed without the FSL report. A Single Judge, noting that the issue as to whether or not in an NDPS case, a charge sheet filed unaccompanied by the FSL report is a valid charge sheet, is pending before the Supreme Court, disposed of the revisional application without passing any order. However, the Judge discussed various decisions of High Courts. It appears that the view of the Jammu and Kashmir High Court is that merely because the Expert’s Report does not accompany the final report, the charge sheet cannot be said to be defective or incomplete. If the charge sheet contains details required under Section 173 Cr. P.C. and is filed within the period prescribed, it cannot be termed as incomplete, in the absence of FSL report. In this connection one may refer to the decision of the Jammu and Kashmir and Ladakh High Court in Abdul Majid Bhat v. UT of J&K MANU/JK/0285/2022. In that case reliance was placed on the decision of the Karnataka High Court passed in the case of Mr. Sayyad Mohammad @Nasim v. State of Karnataka & Anr., Writ Petition No. 5934/2021 decided on March 29, 2022. The Karnataka High Court observed that the petitioner did not get a right to default bail merely because the Charge Sheet / Final Report filed by the Police was without the FSL report. The view of the Bombay High Court also appears to be the same as the Jammu and Kashmir High Court. A Division Bench of that High Court in Manas Krishna T.K. v. State the Police Inspector/Officer-In-Charge & Anr., reported at 2021 SCC OnLine Bom 2955 held that in an NDPS case a police report containing the details prescribed under Section 173(2) Cr. P.C. is a complete police report or a charge sheet or a challan even if it is unaccompanied by a CA/FSL report. If such police report is filed within the period stipulated in Section 167(2) Cr. P.C., read with Section 36-A(4) of the NDPS Act, the accused cannot insist on default bail.  

The High Court observed: "We, therefore, see that while Jammu and Kashmir High Court as well as Bombay High Court have taken the view that the right of statutory bail does not accrue in favour of an accused if a charge sheet containing the particulars mentioned in Section 167(2) Cr. P.C. is filed within the stipulated time period, even if the charge sheet is not accompanied by the FSL report."

The Court felt that "Judicial discipline warrants that for the time being, we follow the view taken by a Coordinate Bench of our Court. The issue is to be finally decided by the Hon’ble Supreme Court before which the matter is pending. In view of the undisputed fact that in the present case the charge sheet, although filed within the period of 180 days, was not accompanied by the FSL report, and that the FSL report was filed as part of a supplementary charge-sheet filed beyond 180 days from the date of arrest of the petitioner and after he applied for statutory bail, we have to hold that upon expiry of 180 days, the petitioner became entitled to statutory bail/default bail, and the learned Trial Court erred in not extending that privilege to the petitioner."

The judgement reads: "we direct that the petitioner, namely, Idul Mia shall be released on bail upon furnishing a bond of Rs.25,000/- (Rupees Twenty Five Thousand) with two sureties of like amount each, one of whom must be local, to the satisfaction of the learned Judge, Special Court under NDPS Act, 3rd Court, Malda, subject to condition that the petitioner shall appear before the learned Trial Court on each and every date of substantive hearing subject to the provisions of Section 317 of the Code of Criminal Procedure, 1973 / Section 355 of Bharatiya Nagarik Suraksha Sanhita, 2023, and shall not intimidate the witnesses and/or tamper with evidence in any manner whatsoever and on further condition that the petitioner, while on bail, shall not to leave the jurisdiction of Kaliachak P.S., Malda and shall also deposit his passport, if there be any, with the Trial Court before his release from the Correctional Home. The petitioner shall also report to the Inspector-in-Charge of Kaliachak Police Station, Malda, once in a week until further orders. In the event the petitioner fails to adhere to any of the conditions stipulated above without any justifiable cause, the learned Trial Court shall be at liberty to cancel his bail in accordance with law without further reference to this Court." The judgement was authored by Justices Arijit Banerjee.

 

Patna High Court sets aside Trial Court's judgment in a NDPS case from West Champaran

In Vinod Das vs. The State of Bihar, Patna High Court's Division Bench of Justices Ashutosh Kumar and Khatim Reza set aside the conviction of Vinod Das and Brijesh Das by under Sections 20(b)(ii)(C) and 23(c) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 by the Trial Court's judgment dated July 22, 2021. By order dated July 26, 2021, both were sentenced to undergo rigorous imprisonment for 15 years for each offence separately, to pay a fine of Rs. One lakh for each offence. The High Court's judgement dated October 4, 2024 recorded several discrepancies in carrying out the investigation which made "the prosecution case highly suspect." The Court was unable to put its "imprimatur on the judgment of the Trial Court convicting the appellants for the offence."

It all began with Shri Ram Kumar, an officer of the S.S.B. receiving secret information on September 18, 2018 that two persons are coming to India with narcotics in huge quantity and they are likely to cross the border sometimes around 7:30 PM on the same day. This information was communicated to his senior officer, viz., Commandant Rajesh Tikku, who constituted a team to lay a seize which included Shri Ram Kumar as well. Two independent persons were chosen as witnesses in advance. They are Gautam Sah and Ram Janam who have been examined at the trial as prosecution witnesses (PWs 5 and 6). Since there was prior information to Ram Kumar, the testing kit and weighing machine was also carried by the team. Two persons, the appellants were found coming from Nepal side after crossing the border. Both were apprehended. They were found to be in possession of a bag containing 12 packets of narcotics which tested positive for charas, a contraband. Samples were drawn in presence of Rajesh Tikku who, apart from the Commandant of S.S.B., a Gazetted Officer. The samples and the rest of the seized narcotics were sealed; the appellants were arrested and the case was lodged. On the basis of the written report, Bhangaha P.S. Case No. 67 of 2018 dated July 18, 2018 was registered for investigation under Sections 20(c), 22, 23, 24 & 28 of the Act. The investigation was conducted by Paras Kumar, one of the PWs. 

The Court examined the deposition of Shri Ram Kumar (PW-1) on whose report the FIR was lodged. Although he supported the prosecution case, but he admitted that he had not reduced the secret information into writing even after the raid was conducted. He simply informed his superior officer, viz., Commandant/ Rajesh Tikku and proceeded to the place from where the miscreants could be apprehended. The samples were drawn by him in presence of Rajesh Tikku. From his deposition, it became clear that two of the witnesses were chosen from before to be witnesses to the seizure but during the course of trial, both of them, viz., PW-5 and PW-6 have expressed their complete ignorance about any such recovery having been made in their presence. They deposed that they were made to sign on a blank sheet of paper.

In accordance with Section 42 of the Act, it was necessary for PW-1 to have reduced such information into writing within 72 hours for further confirmation that the provisions contained in the Act were followed. The appellants' counsel argued that there was a total violation of Section 42 of the Act and the procedure for sampling. 

The High Court relied on Supreme Court's decisions in Abdul Rashid Ibrahim Mansuri vs. State of Gujarat (2000) 2 SCC 513 and Sajan Abraham vs. State of Kerala (2001) 6 SCC 692, wherein it was held that the officer on receiving the information from any person had to record it in writing in the register concerned and had to send a copy of it to his superior officer in accordance with Section 42 of the Act. However, if the information is received when the officer is not in the police station, but while he is on the move, either on patrol duty or otherwise or either by mobile phone or other means and the information would call for immediate action and any delay would result in the goods or evidence being removed or destroyed, then it would not be feasible or practical to go for total compliance of Section 42. In such a situation, he could take action and only thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the superior officer. 

In both these cases, the Court had observed that the compliance with the requirements of Section 42 should normally precede the entry, search and seizure by the officer; but in special circumstances, involving emergent situations, the recording of information in writing and sending a copy thereof to the superior officer, could be postponed by a reasonable period. The question is one of urgency and experience.

The High Court also drew on the decision of Supreme Court's Constitution Bench in Karnail Singh vs. State of Haryana (2009) 8 SCC 539, wherein it was held that while total non-compliance with the requirement of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with the Section. Where a police officer does not record the information at all, and does not inform the officer superior to him at all, then it would be a clear violation of Section 42 of the Act. However, whether there is adequate or substantial compliance with Section 42 or not is required to be decided in each case. 

The High Court also referred to Supreme Court's decision in State of Rajasthan vs. Jagraj Singh @ Hansa (2016) 11 SCC 687; and Boota Singh and Ors. vs. State of Haryana (2021) 19 SCC 606.

The High Court noted another infirmity in the case. In accordance with the Standing Instructions No. 1/88 and 1/89, the samples are required to be drawn before a Gazetted Officer or before an authorised officer. It appears that the samples were drawn in presence of one of the members of the team. Even if one of the members of the team was a Commandant with the SSB and was a Gazetted Officer, the requirements would not be said to be complied with. Because even the officer has not been examined at the trial. The samples were drawn on September 18, 2018 and kept in the Malkhana. There is nothing on record to indicate that the samples as also the left over narcotics were appropriately preserved in the dedicated Malkhana. Beyond the disclosure of the members of the raiding team and the Investigator, there is nothing on record to lend credence to such an assertion of the prosecution. 

The High Court observed that although the samples were drawn on September 18, 2018, but those samples were dispatched to the Forensic Science Laboratory, Muzaffarpur only on January 11, 2019 i.e. after delay of about more than 100 days. Though the parcels were sent by special messenger but it was received in the FSL on January 15, 2019. Given the fact that the samples were not drawn in accordance with the procedure prescribed and the unusual delay in sending those samples to the laboratory, the report of positive test result for the Charas samples tested for Charas "is of no use". The material exhibits produced for the inspection of the Court does not cure the defect. 

The High Court noted that it is surprising that in his cross-examination, PW-4 has claimed to have drawn the samples himself. The samples were drawn by PW-1 at the place of seizure. Even otherwise, there is no entry anywhere in the records of the case of PW-4 having taken out the samples. The High Court found that neither PW-5 nor PW-6, the seizure-list witnesses, who had appended their signature on the proforma of apprehension have supported the prosecution case. These discrepancies in carrying out the investigation makes the prosecution case highly suspect. 

The High Court's judgement authored by Justice Ashutosh Kumar acquitted the appellants of the charges and directed the authorities to release them from the jail.