IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. CRM No.M-33575 of 2010 Date of decision: 10.1.2011 Baljinder Singh @ Billa ... Petitioner Versus State of Punjab … Respondent 2. CRM No.M-37176 of 2010 Mandeep Singh @ Vicky ... Petitioner Versus State of Punjab … Respondent Present: Mr. Jagjit Singh, Advocate for the petitioners. Mr. VPS Sidhu, AAG, Punjab. 3. CRM No.M-35974 of 2010 Ravi ... Petitioner Versus State of Punjab … Respondent Present: Mr. Saurav Khurana, Advocate for the petitioner. Mr. VPS Sidhu, AAG, Punjab. *** S.S. SARON, J. Heard counsel for the parties. This order will dispose of CRM No. M-33575 of 2010 filed by Baljinder Singh @ Billa, CRM No. M-37176 of 2010 filed by Mandeep Singh @ Vicky and CRM No. M-35974 CRM No.M-33575 of 2010 & [2] CRM No.M-37176 of 2010 & CRM No.M-35974 of 2010 of 2010 filed by Ravi as they arise out of the same FIR registered at Police Station Sultanpur Lodhi, District Kapurthala on 10.11.2009 for the offence under Section 15 of the NDPS Act. The petitioners in the respective petitions pray for grant of regular bail in the case that has been registered against them. The FIR in the case has been registered on the basis of memo submitted by Gurmit Singh SI/SHO Police Station Sultanpur Lodhi, District Kapurthala. It is alleged that on 10.11.2009 Gurmit Singh SI/SHO Police Station Sultanpur Lodhi along with other police officials were in a Government vehicle which was driven by H.C. Harjit Singh. ASI Sukhdev Singh, Incharge Police Chowki Mothawal along with other police officials was in another Government vehicle on patrol duty near railway crossing Dadwindi. A special informer informed that on the Jainpur village link road one furlong from the main gate on the left side, one truck No.HR-38D-4612 was parked with boxes of apples and some weighty bags were loaded. It was doubted that there could be something wrong in the bags. Besides, four persons were unloading the bags from the truck. If a raid was conducted then some doubtful or narcotic substances can be recovered. SI Gurmit Singh along with other police officials proceeded to the place as informed by the informer and a raid was conducted. The truck was found present at the disclosed place. Two persons were on the truck and they were handing over the bags to two persons standing on CRM No.M-33575 of 2010 & [3] CRM No.M-37176 of 2010 & CRM No.M-35974 of 2010 the ground. SI Gurmit Singh tried to apprehend them after stopping the vehicles, but the two persons who were on the ground after seeing the police tried to run away. One of them was identified by HC Lakhwinder Singh and HC Balkar Singh with the help of search light as Gurcharan Singh @ Bittu (non-petitioner). Efforts were made to nab him but he succeeded in running away due to the benefit of night. Three persons were, however, apprehended. The persons who were apprehended from the truck disclosed his name as Baljinder Singh @ Billa (petitioner in CRM No. M-33575 of 2010). The other two were Mandeep Singh (petitioner in CRM No. M-37176 of 2010) and Ravi (petitioner in CRM No. M-35974 of 2010). A search was carried out and 50 bags containing 35 kgs of poppy husk each were recovered. In this manner 1750 kgs of poppy husk was recovered. According to the learned counsel appearing for the respective petitioners, the use of the search light shows that the incident had occurred at night time. However, no grounds of belief for search of conveyance without authorization were recorded by the police official namely SI Gurmit Singh. It is submitted that in terms of Sections 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS” – for short) for conducting a search between sun rise and sun set, a warrant of search is liable to be taken. However, in case the police officers has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may CRM No.M-33575 of 2010 & [4] CRM No.M-37176 of 2010 & CRM No.M-35974 of 2010 enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. It is submitted that grounds of belief were not recorded. In support of his contention, learned counsel appearing for the respective petitioners cite Amrik Singh v. State of Punjab, 2010 (1) RCR (Criminal) 330 (P&H). In response, learned State counsel has submitted that the quantity recovered is 1750 kgs of poppy husk which cannot be planted. Besides, the provisions of Section 42 (d) of the NDPS Act are directory in nature. Besides, it is submitted that in any case no prejudice has been caused to the respective petitioners for non-compliance of the said provisions. I have given my thought consideration to the matter. The case involves recovery of 1750 kgs of poppy husk. The respective petitioners are in custody since 10.11.2009. One witness out of 14 witnesses cited by the prosecution has been examined till date. The trial in the case is likely to take time. The petitioners in the respective petitions are not involved in any other case. In Amrik Singh v. State of Punjab’s case (Supra) a Division Bench of this Court held that if an officer has any reason to believe that search warrant or authorization cannot be obtained, he would have to put that in writing. It was observed that even though there was no need for the officer to obtain a search warrant, but it was incumbent upon him to put this belief as to why he cannot obtain a warrant in black and white. In the CRM No.M-33575 of 2010 & [5] CRM No.M-37176 of 2010 & CRM No.M-35974 of 2010 said case the provisions of Section 42 (d) were not complied with and the accused was acquitted inter alia on the said ground. These aspects would be considered and gone into by the learned trial Court. However, it is evident that incident had occurred at night time inasmuch as the FIR records that one of the accused who had run away was identified with the help of search light. Besides, the information was received at the Police Station at 10.00 a.m. on 11.10.2009. According to the learned State counsel there is no other case registered against the respective petitioners. In the circumstances, it can be said that the petitioners in respective petitions for non-compliance of the provisions of Section 42 (d) of the NDPS Act are not guilty of the offence in view of a Division Bench judgment passed by this Court in Amrik Singh’s case (Supra). Besides, while on bail they are not likely to commit any offence. Accordingly, the Crl. Misc. petitions (i.e. CRM No. 37176 of 2010, CRM No. M-33575 of 2010 and CRM No. M- 35974 of 2010) are allowed and each of the petitioners in the respective petitions shall be admitted to bail subject to their furnishing personal bonds and surety each to the satisfaction of the learned Chief Judicial Magistrate Kapurthala. It is, however, made clear that nothing stated herein shall be taken as an expression of opinion on the merits of the case and it is only for the purpose of disposing of the application of bail. The learned trial Court shall CRM No.M-33575 of 2010 & [6] CRM No.M-37176 of 2010 & CRM No.M-35974 of 2010 consider the facts and circumstances of the case on the basis of evidence and material independently as adduced before it. (S.S. SARON) JUDGE January 10, 2011 amit