IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATION ( BAIL ) NO. 136 OF 2010 DAVID DRIHAM @ DUDU, PRESENTLY AT CENTRAL JAIL, AGUADA ... Applicant Versus STATE OF GOA, THROUGH OFFICER IN CHARGE, ... Respondent Mr. Jos Peter D'souza,with Mr. S. Saudagar,Advocates for the applicant. Mr. C. A. Ferreria, Public Prosecutor for the respondent. Coram:- U. D. SALVI, J. Date:- 15th June, 2010 P.C. This is an application for bail in CR No.5/2010 under Section 2(b)(ii)(c), 21(B) and 22(c) of NDPS Act, 1985 registered with Anti Narcotic Cell, Police Headquarters, Panaji, Goa against the applicant accused. 2. Briefly, the prosecution's case is as under : On receipt of a specific reliable information at about 2130 hours on 21.2.2010 that one Dudu @ David, a Israeli national- a drug peddler from Anjuna would be coming with his Santro Car bearing No.GA02-S-6492 of silver colour towards Starco junction, Anjuna on 21.2.2010 between 2300 hours and 2400 hours to deliver narcotic drug and psychotropic substance to his prospective customer, P.S.I, ANPS, Panaji, Goa reduced the said information into writing and dispatched the same to Dy.SP, ANC with covering letter of the same date; and thereafter left for the raid and could apprehend the applicant/ accused in the car of the aforesaid description around 23.30 hours on the road to Starco near Saint Anthony Chapel, Anjuna and in the search that followed, the applicant/ accused was found carrying on his person 144 Ecstasy tablets weighing 55 grams, Heroin powder weighing 6.5 grams, liquid LSD weighing 7.30 grams and in his vehicle charas weighing 1.165 KG. 3. Ld. Advocate D'Souza submits that violation of section 42 of the NDPS Act gives a reason to believe that the applicant is not guilty of the offences alleged against him. He pointed out discrepancies as regards the time of receipt of the information, family name of the applicant/ accused, reference to the vehicle and the place of incriminating transaction, between the contents of the letter dated 21.2.2010 and the alleged copy of the information. He further submits that the grounds of belief, which the I.O was expected to record by virtue of the proviso to subsection 1 of Section 42 of the Act, are also found absent in the information. These shortcomings, he submits, give rise to a reasonable belief regarding non-culpability of the applicant/ accused in the present case. 4. According to the Ld. Advocate D'Souza for the applicant accused, the seizure being made from a private vehicle and the information having been reduced in writing, the rigor of section 42 of the Act squarely applied to the facts in the present case. In support of his submissions, he relied on the judgments reported in (2001)5 Bombay Cases Reporter 517 - Abdul Rehman Fakir Mohammad Durani and Anr. Vs. The State of Maharashtra, 2007 Drug Cases (Narcotic) 646 - Directorate of Revenue and Anr Vs. Mohammad Nisar Holia, 2009(2) Drug Cases (Narcotic) 16 Karnail Singh Vs. State of Haryana, 2009(1) Drug Cases (Narcotics) 241- UOI Vs. Bal Mukund and Ors. To canvass the submissions, that the compliance of the mandatory provisions of the Act have an impact on the recording of the guilt, and in the cases wherein there has been violation of such mandatory provisions, prima facie the non-culpability of the applicant as envisaged under Section 37(1)(b)(ii) of the Act could be believed, he relied on the judgments reported in 1992 Criminal Law Journal 399 - Lawarance D'Souza vs. State of Maharashtra and Anr, 1991 Drug Cases (Narcotics) 145- Mariappa and Ors Vs. State of M.P. and unreported order of this Court in Cri.M.A. no.144/1994 -Feigelson David Vs. State of Goa. 5. As regards the second condition U/s.37(1)(b)(ii) of the Act, he submitted that it is for the prosecution to show that the applicant is not likely to commit any offence while on bail and in the instant case, the prosecution has failed on this count. What follows, therefore, in his view, is the grant of bail to the applicant/ accused as was done in the case of Sundaresan @ Meganathan @ Mega Vs. State reported in 1994 Drugs Cases 48. 6. Countering these submissions, Ld. P.P. Mr. Ferreira for the State submitted that assuming Section 42 of the Act is applicable in the present case, the facts as disclosed prima facie do show that there had been written record of the information received which was duly dispatched to Dy.S.P. as required under the said section. He submitted that by implication one can read through the text of the information the grounds of belief which had prompted the I.O. to proceed for raid without obtaining search warrant or authorisation lest the opportunity for the concealment of the evidence or facility for the escape of the offender. He further submitted that the seizure of cocktail of drugs psychotropic substances both from person as well as from the car driven by the applicant/accused is sufficient indicator of the fact that the applicant accused is a seasoned drug peddler, who is likely to repeat such offences, if released on bail. 7. It is true that the discrepancies as pointed out by the Ld. Advocate D'Souza for the applicant/ accused between the contents of the letter dated 21.2.2010 and the copy of the information sent therewith do exist. Why were such discrepancies ? is the question which requires to be answered upon a full-fledged trial and not at the present stage wherein what appears prima facie has to be looked into. 8. A copy of the information dispatched to Dy.S.P. with the letter dated 21.2.2010 is reproduced herein for ready reference : " Today i.e. on 21.2.2010 at 21.30 hours received Specific and reliable information that one David @ Dudu, Israeli a drug dealer from Anjuna will be coming with his Santro Car bearing No.: GA-02-S-6492 of Silver colour, towards Starco junction, Anjuna, i.e. today on 21.2.2010 between 23.30 hours to 24.00 hrs to deliver Narcotic Drugs and Psychotropic substances to his prospective customer." 9. Expectation of law is that an immediate officer superior to the officer embarking upon an action between sunset and sunrise pursuant to the information received must get fair view of the facts as to why a search warrant or authorisation could not be obtained and whether effort to obtain such search warrant /authorisation would have afforded an opportunity for concealment of the evidence or facility for escape of an offender. A closer look at the text of the information reveals that the information was received by the concerned officer at about 21.30 hours and he was required to apprehend the drug peddler equipped with a Santro car on the mission of delivering drugs between 23.30 hours and 24.00 hours on the same day at a place at Anjuna away from the ANC Police Station at 30 minute's drive. These facts are sufficient to give to the immediate officer superior to the officer recording the information the reasons for not obtaining either search warrant or authorisation for the raid. Compliance of Section 42 is, therefore, prima facie seen in the instant case. 10. In Sundaresan @ Meganathan @ Mega's case, the applicant / petitioner in his application for bail has stated that he is upright man with honest means and that he had not committed any offence at any time muchless any offence under NDPS Act. Except pleading innocence, there is no averment in the application that the applicant is an upright man with honest means. Seizure of cocktail of drugs from the person and custody of the applicant/ accused points out that the applicant accused is seasoned drug peddler and as such is likely to commit such offences, if released on bail. The application is, therefore, rejected. U. D. SALVI, J. SMA