Facts of the case
The concerned FIR was registered on account of inside information received by an officer- SI Arvind Kumar. Upon conveying this to superior officers, direction to conduct a raid operation was granted, where the raiding team apprehended a lady and a man whose names were revealed as Praveen and Gulbabu, the present Petitioner. The Petitioner was apprehended at about 8:00 p.m. on 17th December 2020. They were informed about the tip-off, as necessary, under Section 50 of the NDPS Act. Later in the ACP’s presence, both the accused were searched – the co-accused by a lady constable- Janita Meena, and the Petitioner by SI Arvind Kumar, and were found to be in possession of drugs and cash worth Rs 2.20 lakhs. The FIR against the Petitioner was registered only at 6:36 am on 18th December 2020.
Submission of the Counsel for the Petitioner
Mr. R.K Giri, the learned Counsel on behalf of the Petitioner stated that his client was kept in illegal custody, and the family of the Petitioner was not informed about it through any means. The Counsel further contended that the raiding team also did not comply with Sections 41 and 42 of the NDPS Act. The search of the co-accused was also undertaken by an unauthorized lady constable. It was also stated that his client was being falsely implicated in this case as the site plan was purportedly prepared on the next day when no witness was present. He also brought to light the fact that the Petitioner had no previous criminal record. Further, it was also highlighted that the alleged recovery from the Petitioner was also of intermediate quantity and hence the rigours of Section 37 NDPS Act were not applicable.
Submission of the Counsel for the Respondent
Responding to the issue of false accusation, the APP for the state argued that the site plan was prepared by the officers on-site when they went to the spot, and thus this contention was baseless. Responding to the issue about the co-accused, it was reasoned that the search of the co-accused was taken in the presence of the ACP and Senior Inspector who constituted the raiding team. Furthermore, they also stated that Sections 41 and 42 of the NDPS Act stand complied with.
The decision by the Court
The Court directed the Petitioner to be released on Bail after furnishing a personal bond of Rs 50,000/-(Fifty thousand Indian rupees) with one surety.
Analysis of the Decision
Hon’ble Justice Mukta Gupta, the presiding Judge, observed that the search of the co-accused Parveen was conducted by a lady Constable to maintain her dignity. The search was taken in the presence of the ACP concerned and it did not vitiate the entire search because in the present case the search was conducted at the instance of the authorized officer, through the lady constable as she was a woman in accordance with the law. She also took note of the late arrest, which took place the next day, even though he was apprehended much before and was kept in custody throughout the night, and the fact that there was no clear official insight into the means through which the Petitioner’s family was informed about his arrest. Before finally passing the judgment she also reiterated that the Petitioner had no previous criminal record.
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