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The court held that while considering a bail plea in a case under NDPS Act, non-compliance with the provisions of Section 42 which provides the power of entry, search, seizure, and arrest without warrant or authorization to an officer, and Section 50 which lists the conditions under which the search for persons is to be conducted, can be taken as a ground for granting bail.
The Orissa High Court recently held that if prima facie from record/FIR, it can be established that Sections 42 and 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which are mandatory in nature, have not been complied with, the court considering the bail application can always use the same as a ground to enlarge the petitioner on bail.
A bench of Justice AK Mohapatra said, "If the non-compliance of mandatory provision of Sections 42 and 50 of the NDPS Act is clear and self-explanatory from a bare reading of the F.I.R./Prosecution Report and the prosecution is not in a position to explain that the same has been substantially complied with, in such eventuality, such non-compliance of Sections 42 and 50 of the NDPS Act could be considered and should be taken as a ground to enlarge the petitioner on bail.
The judgment has been passed in a bail plea filed by an accused of an offence punishable under Section 20(b)(ii)(C) of the NDPS Act which mentions the punishment for contravention in relation to the cannabis plant and cannabis and involves a commercial quantity, represented by Advocate Shyam Manohar.
Advocate Manohar emphasized on non-compliance of mandatory provisions like Sections 42 and 50 of the NDPS Act. He argued that "due to non-compliance of mandatory provisions like Sections 42 and 50 of the NDPS Act, the entire seizure was vitiated and further the accused petitioner was most likely to be acquitted in the trial on the aforesaid ground".
Furthermore, he argued that the procedure prescribed by law, particularly with regard to compliance with mandatory provisions under Sections 42 and 50 of the NDPS Act had neither been complied with nor there was anything in the FIR to reveal whether any attempt was made by the police raiding party to comply the provision of the NDPS Act.
Advocate Manohar relied on the judgment of the Supreme Court in the case of Baldev Singh vs. State of Punjab and submitted that non-compliance with the said mandatory provision would vitiate the entire trial and the sanctity of the entire trial would be lost.
Whereas, Additional Standing Counsel PC Das for the State submitted that the court is under no legal obligation to consider the non-compliance/compliance of Sections 42 and 50 of the NDPS Act while considering the bail application of an accused alleged to have committed an offence under the provision of the NDPS Act.
After hearing the arguments, the bench noted that the question that arose was, "Whether the compliance/non-compliance of the mandatory provisions under Sections 42 and 50 of the NDPS Act is to be examined and considered at the stage of consideration of the bail application of the petitioner or the same is required to be considered by the trial court during trial after evidence is laid by both the sides before the trial court."
Given the above, the bench opined that "if there is a possibility that the accused is likely to be acquitted for non-compliance of mandatory provision like Sections 42 and 50 of the NDPS Act, allowing the petitioner to continue in custody would not serve the ends of justice."
While deciding the issue, the bench allowed bail to the accused subject to furnishing a bail bond of Rs.50,000 and other conditions.
Case Title: Raghu @ Rahul Rajput Thakur Vs. State of Odisha
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