Bombay HC grants bail to accused in NDPS case as search and seizure was not done as per law

Introduction

• The article is about a case where the Bombay HC granted bail to a 22-year-old man, who was accused of possessing 50 kg of ganja at his residence, under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
• The accused, Shivraj Gorakh Satpute, was arrested by the Narcotics Control Bureau (NCB) on the basis of a search and seizure operation conducted at his residence after getting information from a co-accused.
• The accused challenged the validity of the search and seizure operation and sought bail on the ground that the NCB did not follow the mandatory procedure under Section 42(1) of the NDPS Act before conducting the operation.
• The trial court had denied the bail application, on the grounds that the accused had a commercial quantity of ganja and had not complied with Sections 42 and 50 of the NDPS Act, which made him ineligible for bail under Section 37 of the NDPS Act.
• The Bombay High Court granted bail to the accused, subject to certain conditions, and observed that the search and seizure operation was not done as per law and raised doubt about the recovery of ganja from the accused’s premises.

Section 42(1) of the NDPS Act

• Section 42(1) of the NDPS Act empowers any officer of the NCB or any other officer authorized by the Central Government to enter, search, seize and arrest any person in any place where he has reason to believe that an offence under the NDPS Act has been or is being committed.
• The section also provides that such officer shall, as soon as may be, inform his immediate official superior of the information received by him, the grounds for such belief, the reason for such entry, search, seizure or arrest and send a copy of such information to his official superior within seventy-two hours.
• The section further provides that if it is not possible to comply with these requirements due to the urgency of the situation or due to any other reason, then such officer shall record the grounds for his belief and send a copy of such grounds to his official superior within seventy-two hours.

Arguments of the accused

• The accused contended that the search and seizure operation was illegal and invalid as the NCB officer did not inform his immediate official superior of the information received by him, the grounds for such belief, the reason for such entry, search, seizure or arrest before conducting the operation as required by Section 42(1) of the NDPS Act.
• The accused also contended that the NCB officer did not record the grounds for his belief and send a copy of such grounds to his official superior within seventy-two hours as required by Section 42(1) of the NDPS Act.
• The accused relied on various judgments of the Supreme Court and High Courts which held that compliance with Section 42(1) of the NDPS Act is mandatory and non-compliance would render the search and seizure operation illegal and invalid.

Arguments of the NCB in Bombay HC

• The NCB opposed the bail application and submitted that the search and seizure operation was valid and legal as per Section 42(1) of the NDPS Act.
• The NCB claimed that the NCB officer had informed his immediate official superior of the information received by him, the grounds for such belief, the reason for such entry, search, seizure or arrest before conducting the operation as required by Section 42(1) of the NDPS Act.
• The NCB also claimed that the NCB officer had recorded the grounds for his belief and sent a copy of such grounds to his official superior within seventy-two hours as required by Section 42(1) of the NDPS Act.
• The NCB produced a copy of the information given by the NCB officer to his immediate official superior before conducting the operation and a copy of his report containing the grounds for his belief sent to his official superior within seventy-two hours.

Observation and decision of the Bombay HC

• The Bombay High Court examined the copy of the information given by the NCB officer to his immediate official superior before conducting the operation and found that it was vague and general.
• The court also observed that there was no evidence to show that it was given before conducting the operation.
• The court further noted that there was no endorsement or acknowledgment by the official superior on receiving such information within seventy-two hours as required by Section 42(1) of the NDPS Act.
• The court held that these facts cast serious doubts on the genuineness and validity of the information given by the NCB officer to his immediate official superior before conducting the operation as required by Section 42(1) of the NDPS Act.
• The court relied on the following judgments in the NDPS case of Shivraj Gorakh Satpute:
  • • Union of India v. Shiv Shanker Kesar, (2007) 7 SCC 798: This judgment held that the expression “reasonable grounds” in Section 37(1)(b)(ii) of the NDPS Act means something more than prima facie grounds and connotes substantial probable causes for believing that the accused is not guilty of the offence charged. It also held that compliance with the provisions of Section 42 of the NDPS Act is a factual matter that should be addressed during the trial¹
    • State of Rajasthan v Jagraj Singh @ Hansa, (2016) 11 SCC 687: This judgment held that compliance with Section 42(1) of the NDPS Act is mandatory and non-compliance would render the search and seizure operation illegal and invalid. It also held that the information given by the officer to his immediate official superior before conducting the operation must be specific and not vague or general²
  • Boota Singh and ors v State of Haryana, 2021 SCC Online SC 324: This judgment held that compliance with Section 42(1) of the NDPS Act is mandatory and non-compliance would render the search and seizure operation illegal and invalid. It also held that the information given by the officer to his immediate official superior before conducting the operation must be given before and not after the operation³
  • Union of India through Narcotic Control Bureau, Lucknow v Md. Nawaz Khan, Criminal Appeal No.1043 of 2021: This judgment held that compliance with Section 42(1) of the NDPS Act is mandatory and non-compliance would render the search and seizure operation illegal and invalid. It also held that in exceptional circumstances where immediate action is required, the officer may record the grounds for his belief after the operation, along with the reasons for the delay⁴
• Based on these precedents, the court granted bail to the accused subject to certain conditions, such as furnishing a personal bond of Rs.50,000/- with one or more sureties in like amount, reporting to the investigating officer once in a fortnight, not leaving the jurisdiction of the trial court without prior permission, etc. The court also directed the trial court to expedite the trial.

Conclusion about decision of Bombay HC

• The article summarises a case where the Bombay High Court granted bail to an accused in a case registered under the NDPS Act as the search and seizure operation conducted by the NCB at his premises was doubtful.
• The court held that the search and seizure operation was illegal and invalid as the NCB officer did not comply with the mandatory procedure under Section 42(1) of the NDPS Act.

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