CRM-M-24059-2011 [ 1 ] ::::::::::: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-24059-2011 Date of decision:21.09.2011. Jagjit Singh @ Jagga ...Petitioner Versus State of Punjab ...Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. K.S.Dhaliwal, Advocate, for the petitioner. Mr. A.S.Rai, DAG, Punjab. ***** RAKESH KUMAR JAIN, J. The petitioner has applied for bail in a case registered vide FIR No.50 dated 10.03.2011, under Sections 15/61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 [for short “NDPS Act”] at Police Station Shahkot, District Jalandhar. The petitioner has reproduced the following translated FIR: “The SHO, P.S.Shahkot. Today, I, ASI Arjan Singh, HC Jaswant Singh 1088, HC Nishan Singh 651, HC Harjinder Singh 227, C Jagir Singh 732 were present at T-Point of village Lasoori in relation with patrolling and checking of suspicious persons, in official vehicle bearing registration no.PB-08-AB-9602 when a confidential informer came present and gave information that Jagjit Singh alias Jagga s/o Gurmukh Singh caste Jatt Sikh r/o Manakpur, along with his servant Raju Yadav Bhaiya, is sitting with a large quantity of buds of poppy CRM-M-24059-2011 [ 2 ] ::::::::::: husk among the few small plants of sugarcane near his dera and are preparing to put them in bags for selling them. If a raid is conducted immediately then both of them can be apprehended along with the buds. At which, I, along with co-officials, conducted a raid and both the above mentioned persons were apprehended weighing the buds of poppy husk with handheld weighing scale and weights and filling plastic bags from open mouthed gunny bags and on enquiring their names and addresses they identified themselves as the above mentioned, from whom four open gunny bags of buds of poppy husk were recovered. Two samples of 250 grams each were separated from each gunny bag and the remaining buds of poppy husk in the gunny bags were weighed and each gunny bag weighed 29 Kgs. 500 grams. I, ASI, affixed my stamp H.S. on each of the samples and gunny bags of buds of poppy husk and along with handheld weighing scale, weights 2 Kgs., 1 Kg., 500 grams, 200 grams and 50 grams and 5 empty plastic bags, took it into police custody vide separate recovery memo. Form-29 was prepared separately. The stamp, after use, was handed over to ASI Arjan Singh. Above mentioned Jagjit Singh alias Jagga s/o Gurmukh Singh and Raj Yadav Bhaiya s/o Abu Yadav caste Yadav r/o Nesarpur, P.S.Purnia, District Nariyal, Bihar, at present servant of above mentioned Jagjit Singh have committed an offence u/s 15-61-85 NDPS Act by keeping 120 Kgs. of buds of poppy husk in their possession. Therefore, this ruqa is being written and sent by hand of HC Harjinder Singh 227 to CRM-M-24059-2011 [ 3 ] ::::::::::: the Police Station for registration of case. The case number, after registration, may be conveyed. Special reports may be sent to the superior officers. I, along with co-officials, am busy in investigation. Sd/- Harjit Singh ASI, CIA Staff, Jallandhar. Dated 10.03.2011.” The petitioner had also applied for bail before the learned Trial Court but it was dismissed on 19.07.2011 in terms of Section 37 of the NDPS Act. Learned counsel for the petitioner has mainly argued that the raid was conducted on a secret information without complying with the provisions of Section 42 of the NDPS Act, therefore, the petitioner deserves concession of bail. He has relied upon two decisions of the Supreme Court rendered in the cases of State of Karnataka v. Dondusa Namasa Baddi, 2010(4) RCR (Criminal) 367 and Karnail Singh v. State of Haryana, 2009(5) RCR (Criminal) 515. In reply, learned State Counsel has submitted that total non-compliance of Section 42 of the NDPS Act and the prejudice having been caused to the accused is a matter of fact which has to be assessed by the learned Trial Court after taking evidence, but if copy of the special report has been sent to the superior officers, the petitioner cannot claim absolute right of bail for non-compliance of Section 42 of the Act. In this regard, he has relied upon a decision of the Supreme Court in the case of Bahadur Singh v. State of Haryana, 2010(2) R.C.R. (Criminal) 586. In order to appreciate the rival contentions, it would be worthwhile to mention that from the FIR, it is prima facie apparent that the secret information was not reduced into writing but the special report was conveyed to the superior officers. Learned counsel for the petitioner has not pointed out the prejudice having been caused to the petitioner except alleging that it creates a suspicion. In State of Karnataka's case (supra), it has been observed by the Apex Court that oral evidence of a police officer that sufficient time was not available to record information in writing and for sending it to superior officers is not the sufficient compliance of Section 42 of the NDPS Act. In Karnail Singh's case (supra), while deciding the question CRM-M-24059-2011 [ 4 ] ::::::::::: “whether compliance of Section 42 of the NDPS Act is mandatory and failure to take down the information in writing and forthwith sending a report to immediate superior would cause prejudice to accused”, it has been held by the Apex Court: “(i) Total non compliance of Section 42(1) and (2) is impermissible i.e. where the officer does not record the information at all and does not inform the official superior, then it would be clear violation of Section 42 of the NDPS Act. (ii) Total non-compliance of Section 42(1) and (2) is impermissible – However, delay in compliance with satisfactory explanation will be acceptable compliance of Section 42-To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. (iii) If the information was received when the Police Officer was in Police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. (iv) Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case.” In Bahadur Singh's case (supra), the secret information was not reduced into writing but a wireless message was sent to the superior officers. It was held by the Apex Court that the petitioner has to show prejudice having been caused to him to take benefit of non-compliance of Section 42 of the NDPS Act which is a pure question of fact and is to be CRM-M-24059-2011 [ 5 ] ::::::::::: decided after taking the evidence. In view of the aforesaid discussion, I do not find any merit in the present bail application as the recovery is of 120 Kgs. of poppy husk (commercial quantity) from the petitioner at the spot, therefore, he is not entitled to bail in terms of Section 37 of the NDPS Act. The petition is, thus, dismissed. September 21, 2011 (RAKESH KUMAR JAIN) vinod* JUDGE