Rajasthan High Court Emphasizes the Critical Role of Compliance with Section 42 of NDPS Act in Search, Seizure, and Arrest Procedures
Case Title: Ashok @ Mulla Ram v. State of Rajasthan
Date of Decision: 19th August, 2023
S.B. Criminal Miscellaneous 2nd Bail Application No. 7492/2023
Presiding Judge: Hon’ble JUSTICE FARJAND ALI
Intro:
In a recent case before the Rajasthan High Court, a significant legal decision was reached regarding the strict adherence to procedures under the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The court granted bail to an accused individual, citing a violation of Section 42 of the NDPS Act and a subsequent state government notification. Justice Farjand Ali emphasized the importance of following the NDPS Act diligently and stressed that non-compliance with the prescribed procedures for search, seizure, and arrest should not be tolerated.
Facts:
The accused in this case faced charges under Sections 8 and 21 of the NDPS Act. The prosecution’s case revolved around an incident that occurred on June 10, 2022. During this incident, Seizing Officer Bhanwar Lal, a Sub-Inspector, was in charge of the police station because the Station House Officer (SHO) Rajveer Singh was absent.
Sub-Inspector Bhanwar Lal, while on patrol duty, apprehended the petitioner-accused and discovered a certain quantity of medicinal drug, Monocof Cough Syrup, in a carton the accused was carrying. Notably, the entire search and seizure operation were conducted by Sub-Inspector Bhanwar Lal, while the subsequent investigation was carried out by SHO Rajveer Singh.
The defense counsel argued that Sub-Inspector Bhanwar Lal, who conducted the search and seizure, was not officially posted as the SHO of the concerned police station. According to Section 42(1) of the NDPS Act, only officers authorized by the Central or State Government may conduct searches, seizures, or arrests.
The defense contended that a Sub-Inspector did not possess the necessary authority to carry out these actions under the Act. They pointed to a notification dated October 16, 1986, issued by the State, which empowered only those Sub-Inspectors of Police posted as State House Officers to exercise powers under Section 42. Consequently, the defense argued that the mandatory provisions of the NDPS Act were not followed, rendering the recovery of the contraband invalid.
Judgment:
In its judgment, the Rajasthan High Court observed that when enacting Section 42 of the NDPS Act, the legislature had explicitly prohibited any authorities other than those mentioned in the section from performing functions under the Act. The court emphasized two crucial requirements: firstly, the authorized officers mentioned in the section and secondly, they must have a “reason to believe” from personal knowledge or information. The court reiterated that these officers must hold a specific rank, and the “reason to believe” element is indispensable.
The court noted that in this case, the Sub-Inspector was not officially posted as the SHO, and the head constable who held the SHO position had further delegated his charge to the Sub-Inspector. The court invoked the Latin maxim “delegata potestas non potest delegari,” which means that once a power is delegated, it cannot be further delegated. However, it left the final determination of this matter for the trial court to decide after evidence evaluation.
The court emphasized the importance of strict adherence to the mandatory provisions of the NDPS Act, particularly in cases involving seizures. It emphasized that no accused should evade legal consequences due to the improper implementation and non-compliance with established legal procedures. The court cited Article 21 of the Indian Constitution, which guarantees the protection of life and personal liberty, emphasizing the sanctity of individual rights and the need to uphold them through lawful means.
As a result, the Rajasthan High Court granted bail to the accused based on the grounds of non-compliance with statutory procedures in the NDPS Act. This decision underscores the judiciary’s commitment to upholding the rule of law and safeguarding individual liberties in drug-related cases.
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Written by Yagya Agarwal