Bombay High Court Grants Bail in NDPS Case Due to Non-Compliance with Section 42 of the NDPS Act

Introduction

The Bombay High Court recently addressed a critical issue concerning procedural compliance under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), in a case involving a 22-year-old man, Shivraj Gorakh Satpute, who was accused of possessing 50 kilograms of ganja at his residence. The case highlighted the significance of Section 42 NDPS Act non-compliance, which can undermine the legality of search and seizure operations and affect the fairness of the investigation

The accused was arrested by the Narcotics Control Bureau following a search and seizure operation at his residence, which was purportedly conducted based on information obtained from a co-accused. The trial court had initially denied bail, citing the commercial quantity of the contraband recovered and alleged non-compliance with Sections 42 and 50 of the NDPS Act, thereby making the accused ineligible for bail under the stringent provisions of Section 37 of the Act. However, the High Court took a different view after examining the procedural lapses in the investigation and granted bail to the accused, subject to certain conditions. This decision underscores the judiciary’s emphasis on strict adherence to procedural safeguards as a bulwark against potential abuse of power in cases involving narcotic substances.

Legislative Framework: The NDPS Act and Its Procedural Safeguards

The Narcotic Drugs and Psychotropic Substances Act, 1985, was enacted to consolidate and amend the law relating to narcotic drugs and psychotropic substances with a view to implementing India’s international obligations under various conventions. The Act adopts a zero-tolerance approach towards drug trafficking and abuse, prescribing severe punishments based on the quantity of contraband involved. Offences are categorized into small quantity, intermediate quantity, and commercial quantity, with penalties ranging from rigorous imprisonment to substantial fines. For offences involving commercial quantities, the Act mandates a minimum sentence of ten years rigorous imprisonment, which may extend to twenty years, along with hefty fines [1].

Despite the stringent penal provisions, the NDPS Act incorporates several procedural safeguards to protect individuals from arbitrary action by law enforcement authorities. These safeguards are particularly important given the severe consequences of conviction under the Act. The provisions relating to search, seizure, and arrest are governed primarily by Sections 41, 42, 43, and 50 of the Act, which lay down specific procedures that must be followed by investigating officers. Non-compliance with Section 42 NDPS Act procedures (or non-compliance with Section 42 NDPS Act) can have serious implications for the prosecution’s case and may even entitle an accused person to relief, including bail or acquittal.

Understanding Section 42 of the NDPS Act

Section 42 of the NDPS Act is a crucial provision that empowers officers of the Narcotics Control Bureau and other authorized officers to enter, search, seize contraband, and arrest persons in places where they have reason to believe that an offence under the Act has been or is being committed. However, this power is not absolute and comes with stringent procedural requirements designed to prevent its misuse [2].

The provision requires that when an officer receives information regarding the commission of an offence under the NDPS Act, he must, as soon as may be, inform his immediate official superior about the information received, the grounds for his belief, and the reasons for entry, search, seizure, or arrest. Critically, a copy of this information must be sent to the official superior within seventy-two hours. This requirement ensures a layer of oversight and creates a documentary trail that can be scrutinized during trial to verify the genuineness of the information and the legitimacy of the action taken.

The second part of Section 42 deals with situations where it is not practicable to immediately inform the superior officer before conducting the operation due to urgency or other reasons. In such cases, the officer is required to record in writing the grounds for his belief and the reasons why prior information could not be given, and subsequently send this record to his immediate official superior within seventy-two hours of the operation. This provision balances the need for swift action in drug-related cases with the requirement of accountability and transparency.

Courts have consistently held that compliance with Section 42 is not merely directory but mandatory in nature. The requirement to inform the superior officer and to record the grounds of belief serves a dual purpose: it acts as a safeguard against arbitrary action and ensures that the superior officer can exercise supervisory control over the conduct of subordinate officers. Any substantial non-compliance with these requirements can vitiate the entire investigation and render the search and seizure illegal.

Section 37 and the Restrictive Bail Regime Under the NDPS Act

Section 37 of the NDPS Act imposes stringent conditions for the grant of bail to persons accused of offences under the NDPS Act. The provision creates a presumptive bar against bail by stipulating that no person accused of an offence punishable for a term of imprisonment of more than three years shall be released on bail unless two conditions are satisfied. First, the public prosecutor must be given an opportunity to oppose the bail application. Second, the court must be satisfied that there are reasonable grounds to believe that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail.

This twin-condition test makes it significantly more difficult for accused persons in NDPS cases to obtain bail compared to other criminal cases. The Supreme Court has interpreted these conditions strictly, holding that the threshold for granting bail in NDPS cases is higher than in ordinary criminal matters. In the landmark judgment of Union of India v. Shiv Shanker Kesari [3], the Supreme Court clarified that the expression “reasonable grounds” means something more than prima facie grounds and connotes substantial probable causes for believing that the accused is not guilty of the offence charged. The Court emphasized that bail in NDPS cases should be granted sparingly and only after careful consideration of the twin conditions.

However, the restrictive bail regime under Section 37 does not operate in a vacuum. Courts have held that procedural irregularities and non-compliance with mandatory provisions of the NDPS Act can be relevant considerations while examining bail applications. If the investigation itself is tainted by serious procedural violations, particularly non-compliance with Section 42, courts may lean towards granting bail on the ground that the prosecution’s case is doubtful and the accused is unlikely to be convicted at trial.

Arguments Advanced by the Accused

In the present case, the accused challenged the validity of the search and seizure operation on multiple grounds. The primary contention was that the Narcotics Control Bureau officer who conducted the operation failed to comply with the mandatory requirements of Section 42(1) of the NDPS Act. Specifically, it was argued that the officer did not inform his immediate official superior about the information received, the grounds for his belief, and the reasons for conducting the search and seizure operation before actually carrying out the operation.

The accused also contended that even if some information was given to the superior officer, there was no proper documentation to establish that this was done before the commencement of the operation. Furthermore, it was argued that the officer failed to record the grounds for his belief in writing and did not send a copy of such grounds to his official superior within the stipulated period of seventy-two hours as mandated by the provision.

To support these arguments, the defence relied on several binding precedents from the Supreme Court and various High Courts which have consistently held that compliance with Section 42(1) is mandatory and that any non-compliance would render the search and seizure operation illegal and invalid. The accused emphasized that the procedural safeguards contained in Section 42 are not mere technicalities but substantive protections designed to prevent arbitrary exercise of power by law enforcement officers. When these safeguards are violated, the fruits of such illegal search and seizure cannot be used as evidence against the accused.

The defence particularly highlighted the importance of the requirement to inform the superior officer before conducting the operation. This requirement ensures that there is an independent check on the officer’s decision to conduct a search and provides a contemporaneous record that can be verified later. Without such compliance, there is always a risk that the officer may fabricate the information or manipulate the circumstances to justify an illegal search.

Response of the Narcotics Control Bureau

The Narcotics Control Bureau opposed the bail application and submitted that the search and seizure operation was conducted in full compliance with the provisions of Section 42(1) of the NDPS Act. The NCB claimed that the investigating officer had duly informed his immediate official superior about the information received from the co-accused and had obtained necessary approvals before proceeding with the search operation at the accused’s residence.

To substantiate its claim, the NCB produced before the court a copy of the purported information that was given by the investigating officer to his immediate official superior before conducting the operation. Additionally, the NCB submitted a copy of a report allegedly prepared by the investigating officer within seventy-two hours of the operation, which contained the grounds for his belief and the circumstances that led to the search and seizure.

The prosecution argued that the provisions of Section 42 had been substantially complied with and that any minor deviations, if at all, were not fatal to the case. It was contended that the accused was found in possession of a substantial quantity of ganja, which constituted a commercial quantity under the NDPS Act, and that the evidence against him was strong. The NCB submitted that the accused should not be granted bail under the restrictive provisions of Section 37 of the Act, as there were no reasonable grounds to believe that he was not guilty of the offence charged.

The prosecution also emphasized the serious nature of drug-related offences and the need to take a strict view in such cases. It was argued that granting bail to the accused would send a wrong message and could potentially allow him to tamper with evidence or influence witnesses. The NCB requested the court to dismiss the bail application and allow the trial to proceed expeditiously.

Judicial Examination and Observations by the Bombay High Court

The Bombay High Court carefully examined the documents produced by the Narcotics Control Bureau to verify compliance with Section 42(1) of the NDPS Act. Upon scrutiny, the court found several serious deficiencies that cast doubt on the genuineness and validity of the claimed compliance. The court observed that the copy of the information purportedly given by the investigating officer to his immediate official superior was vague and general in nature. It lacked specific details about the source of information, the exact nature of the intelligence received, and the grounds that led the officer to believe that the accused was in possession of contraband.

More importantly, the court noted that there was no credible evidence to establish that this information was actually given before the search and seizure operation was conducted. The document did not bear any date or time stamp that could definitively prove that it was prepared and transmitted before the operation commenced. This raised serious questions about whether the document was created retrospectively to give a veneer of legality to an otherwise questionable search.

The court also observed that there was no endorsement or acknowledgment from the official superior on the document, which would normally be expected if such information was indeed received within seventy-two hours as required by Section 42(1). The absence of such acknowledgment further undermined the prosecution’s claim of compliance with the mandatory procedural requirements.

Drawing upon established legal principles, the Bombay High Court relied on several Supreme Court judgments that have dealt with the interpretation and application of Section 42 of the NDPS Act. In State of Rajasthan v. Jagraj Singh [4], the Supreme Court had categorically held that compliance with Section 42(1) is mandatory and not directory. The Court observed that the information given by the officer to his immediate official superior must be specific and not vague or general. Any non-compliance with Section 42 NDPS Act procedures would vitiate the search and seizure operation and could result in the acquittal of the accused.

Similarly, in Boota Singh and Others v. State of Haryana [5], the Supreme Court reiterated that the procedural safeguards contained in Section 42 are substantive in nature and must be strictly followed. The Court held that the requirement to inform the superior officer before conducting the operation is not a mere formality but an essential safeguard against arbitrary action. The information must be given before the operation commences, and not after it has been conducted.

The Bombay High Court also took note of the judgment in Union of India through Narcotic Control Bureau v. Md. Nawaz Khan [6], where the Supreme Court held that in exceptional circumstances requiring immediate action, an officer may record the grounds for his belief after the operation, along with valid reasons for the delay in informing the superior officer. However, even in such cases, the officer must demonstrate that there was genuine urgency that made it impossible to comply with the prior information requirement. In the present case, the prosecution failed to establish any such exceptional circumstances.

Based on these precedents and after a careful evaluation of the evidence on record, the Bombay High Court concluded that the search and seizure operation conducted at the accused’s residence was not done in accordance with law. The non-compliance with the mandatory provisions of Section 42(1) cast serious doubts on the genuineness of the entire operation and the recovery of ganja from the accused’s premises. While these issues would ultimately need to be decided during the trial, the court held that at the stage of considering bail, these procedural irregularities constituted relevant factors that weighed in favor of the accused.

Conditions for Grant of Bail in NDPS Cases

Having found that there were serious procedural lapses in the investigation, the Bombay High Court proceeded to grant bail to the accused, subject to stringent conditions designed to ensure his presence during trial and to prevent any possibility of tampering with evidence or influencing witnesses. The accused was directed to furnish a personal bond of Rs. 50,000 along with one or more sureties of the like amount to the satisfaction of the trial court.

The bail order imposed several additional conditions on the accused. He was required to report to the investigating officer once every fortnight, which would allow the authorities to monitor his movements and ensure that he remained available for investigation and trial. The accused was also prohibited from leaving the jurisdiction of the trial court without obtaining prior permission, thereby restricting his ability to abscond or evade the legal process.

Furthermore, the court directed that the accused should not directly or indirectly make any threat to the witnesses or attempt to tamper with evidence in any manner. Any violation of these conditions would result in immediate cancellation of bail and re-arrest of the accused. The court also directed the trial court to expedite the trial and dispose of the case at the earliest possible opportunity, recognizing the need for speedy justice in criminal matters.

These conditions reflected a careful balancing of competing interests. On the one hand, the court recognized the accused’s right to liberty, particularly in light of the serious procedural irregularities in the investigation. On the other hand, the court was mindful of the serious nature of the offence charged and the need to ensure that the grant of bail did not prejudice the prosecution’s case or allow the accused to misuse his liberty.

Broader Implications and Judicial Trends

The Bombay High Court’s decision in this case is part of a broader judicial trend emphasizing the importance of strict compliance with procedural safeguards in NDPS cases. Over the years, courts have repeatedly held that while drug-related offences are serious and warrant stringent punishment, the investigation must be conducted in accordance with the procedure established by law. Any deviation from mandatory procedural requirements can have serious consequences for the prosecution’s case.

The insistence on strict compliance with Section 42 serves several important purposes. First, it acts as a check against arbitrary and high-handed action by law enforcement authorities. The requirement to inform the superior officer and to record the grounds for belief ensures that there is a contemporaneous record of the circumstances leading to the search and seizure, which can be verified later. This reduces the possibility of false implication and fabrication of evidence.

Second, these procedural safeguards protect the fundamental rights of citizens, particularly the right to privacy and the right against arbitrary arrest and detention. Drug-related investigations often involve intrusive searches of private premises and personal belongings. The procedural requirements of Section 42 ensure that such intrusions are based on credible information and are subject to appropriate oversight.

Third, strict compliance with procedural safeguards enhances the credibility and reliability of evidence collected during the investigation. When the investigation is conducted in accordance with law, the evidence gathered is more likely to withstand scrutiny during trial. Conversely, when there are serious procedural lapses, courts may be inclined to view the entire investigation with suspicion, potentially leading to acquittal of the accused.

It is important to note that the grant of bail in such cases does not amount to an acquittal or a finding that the accused is innocent. Bail is merely a temporary release pending trial and does not prejudice the prosecution’s right to prove its case at trial. However, procedural irregularities can certainly influence the court’s assessment of whether there are reasonable grounds to believe that the accused is not guilty, which is one of the twin conditions for grant of bail under Section 37 of the NDPS Act.

Conclusion

The Bombay High Court’s decision to grant bail to the accused in this case highlights the critical importance of procedural compliance in NDPS investigations. The court’s detailed examination revealed serious lapses in following Section 42(1) of the NDPS Act, demonstrating how non-compliance with Section 42 NDPS Act procedures can affect the legality of search and seizure operations. This serves as a reminder to investigating agencies that procedural safeguards are not mere technicalities but substantive protections that must be scrupulously followed.

The decision reaffirms the principle that the ends do not justify the means, and that even in the fight against drug trafficking, law enforcement authorities must operate within the bounds of law. The requirement to inform the superior officer before conducting a search and seizure operation, and to record the grounds for belief in writing, are essential safeguards that ensure accountability and transparency in the investigation process. Any non-compliance with these requirements can render the entire operation illegal and may result in the exclusion of evidence or grant of bail to the accused.

For investigating agencies, this case underscores the need for proper training and awareness about the procedural requirements of the NDPS Act. Officers must be educated about the importance of maintaining proper documentation and following the prescribed procedures at every stage of the investigation. For the legal community and accused persons, the decision reaffirms that procedural irregularities can be effectively challenged and that courts will not hesitate to grant relief when mandatory provisions of law are violated.

Ultimately, the case demonstrates the delicate balance that courts must strike between combating the menace of drug trafficking and protecting the rights of individuals. While the judiciary recognizes the serious nature of drug-related offences and the need for stringent measures to curb them, it is equally committed to ensuring that the investigation and prosecution are conducted fairly and in accordance with established legal procedures. This balance is essential for maintaining public confidence in the criminal justice system and ensuring that the rule of law prevails.

References

[1] Government of India. Procedural safeguards and immunities under the NDPS Act. Department of Revenue. Available at: https://dor.gov.in/procedural-safeguards-and-immunities-under-ndps-act 

[2] India Code. The Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 42. Available at: https://www.indiacode.nic.in/show-data?actid=AC_CEN_2_2_00029_198561_1517807326222&sectionId=25154&sectionno=42&orderno=56 

[3] Union of India v. Shri Shiv Shanker Kesari, (2007) 7 SCC 798. Available at: https://indiankanoon.org/doc/1648816/ 

[4] State of Rajasthan v. Jag Raj Singh @ Hansa, (2016) 11 SCC 687. Available at: https://indiankanoon.org/doc/126713299/ 

[5] Boota Singh and Ors v. State of Haryana, 2021 SCC OnLine SC 324. Available at: https://narcoticsindia.nic.in/Judgments/JD_BootaSingh_StateHaryana.pdf 

[6] Union of India through Narcotic Control Bureau, Lucknow v. Md. Nawaz Khan, Criminal Appeal No. 1043 of 2021. Available at: https://www.scconline.com/blog/post/2022/02/04/s-37-of-the-ndps-act-mandates-a-more-stricter-approach-than-an-application-for-bail-sans-the-ndps-act/ 

[7] SCC Times. Procedural Compliances in relation to Search, Seizure and Arrest under NDPS Act, 1985. Published April 4, 2024. Available at: https://www.scconline.com/blog/post/2021/09/22/procedural-compliances-qua-search-seizure-and-arrest-under-ndps-act-1985/ 

[8] LiveLaw. Non-compliance of mandatory provisions for search and seizure under Narcotics Act (NDPS) vitiates conviction: SC. Published July 3, 2016. Available at: https://www.livelaw.in/non-compliance-mandatory-provisions-search-seizure-ndps-act-vitiates-conviction-sc 

[9] iPleaders. Narcotic Drugs and Psychotropic Substances Act, 1985: an insight. Published August 14, 2023. Available at: https://blog.ipleaders.in/narcotic-drugs-and-psychotropic-substances-act-1985-an-insight/