Allahabad High Court: Compliance of Section 42 of the NDPS Act Is Not a Question of Fact in Bail Application

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On 24th July 2020, Justice Jaspreet Singh heard the case of Vinay Kumar Mishra vs Union of India via video-conferencing. The Court rejected the bail plea. It further directed the Trial Court to expedite the trial.

Facts of the case

The Zonal Director of Narcotics Control Bureau (NCB) received a complaint in writing. The complainant stated that the applicant transported ganja in huge quantity in a concealed cavity in a truck. The truck travelled from Chhattisgarh to Faizabad. The raiding team intercepted the truck. It had two people in it, Vivek Kumar Mishra (the present applicant) and Kaleem. They opened the hidden cavity behind the driver’s seat and found 15 jute bags.

The bags had 167 small packets. They recovered a total quantity of 349.250 kg of ganja. The ganja and the truck belong to other parties and not to the applicant. The applicant is in jail since 18.11.2019. He has moved the instant bail application. 

The applicant is charged under Section 8, Section 20, Section 29, and Section 60(3) of the Narcotic Drugs & Substances Act (NDPS Act, 1985).

Arguments of the Applicant

The counsel for the applicant argued that there is a violation of Section 42 of the NDPS Act.

The Zonal Director, NCB did not mention the source of information that he received. He admittedly did not reduce it in writing. There was a non-compliance with Section 50 of the NDPS Act. The consent memo does not bear the place and time of its preparation. He further added that it does not even bear the signatures of the other members of the team.

There is no material that indicated the conscious possession of the recovered contraband. Thus, the applicant cannot be charged under the NDPS Act. Instead, they should charge the owner of the ganja as disclosed by the applicant.

Arguments of the Respondent

The learned counsel for the respondent argued that Section 42 of the NDPS Act was complied with. The information received was reduced to writing and was also reported to the Senior Officer. Furthermore, the record also shows the compliance of Section 50 of the NDPS Act.

The applicant clearly had the knowledge of the presence of the contraband in the Truck. Besides, he was also aware of the person who loaded it. NCB made efforts to trace out the other offenders. Yet, they are not traceable yet.

Court’s Analysis

The Court will not look into the compliance of Section 42 as a question of fact for considering the bail application. The applicant himself brought on record the copy of the memo he signed. Thus, proving that Section 50 of the NDPS Act was duly complied with. 

The argument that the applicant did not have conscious possession does not sound convincing. The applicant himself had stated that the bags loaded in the truck had the contraband. Hence, the applicant prima facie did have conscious possession.

Court’s Decision

The Court rejected the bail application. It also added that any expression made in this judgment is only to this bail application. Thus, this judgment will not affect the trial. 

The applicant has been in jail since 18.01.2019. Thus, this Court directed the Trial Court to expedite the trial.


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