Bombay High Court: In the present case, four bail applications arose in connection with a case for offences punishable under Sections 8(c), 21(c), 22(c), and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘the NDPS Act’) read with Sections 4651, 4682, 4713, and 4734 of the Penal Code, 1860. A Single Judge Bench of Milind N. Jadhav, J., stated that in the present case, the non-compliance of the provisions left a lacuna which formed a reason for grant of bail and if the statute required the statutory Authority to act in a particular manner, it was not open to the said Authority to follow a different procedure or regime contrary to the established and prevalent Rules/procedure. Thus, the Court directed that all the four applicants-accused persons should be released on bail.
Background
Accused 1 was apprehended with alleged contraband of 100 bottles of Codeine Phosphate & Chlorpheniramine Malete Syrup 100 ml, DASLIN — CD+’ and thereafter, house of Accused 2 was raided and 42 boxes containing 4200 bottles of the same contraband and 900 tablets of ‘Nitrazepam Tablets — IP Nitravet’ was recovered from his possession. Later, prosecution intercepted Accused 3 outside his house and recovered 375 tablets of Alprazolam Tablets IP 0.5 mg’7 from his possession. Further, prosecution conducted a search of residence of Accused 4 and 5 and recovered certain invoices; and rubber stamps of medical practitioners and certain invoices, respectively.
The accused persons challenged the search as it was carried out without any authorization or search warrant and submitted that the prescribed statutory procedure under the NDPS Act and NDPS (Seizure, Storage, Sampling and Disposal) Rules, 2022 (‘the 2022 Rules’) was compromised and the prosecution case stood vitiated, and thus, they deserve to be released on bail. Accused 3 was enlarged on bail by order dated 4-5-2024 passed by the Sessions Court.
Counsel for the applicant submitted that there was non-compliance of Section 52-A of the NDPS Act. Whereas Counsel for the respondent submitted that recovery of official seals of multiple medical practitioners and commercial quantity of contraband made it clear that the accused persons were involved in illicit activities under the garb of being medical representatives.
Analysis, Law, and Decision
The Court referred to Section 52-A(2) which contemplated preparation of inventory panchnama and making an application to the Magistrate for the purposes of Section 52-A(2)(a), (b) and (c). Further, Section 52-A(3) contemplated allowing the application by the Magistrate by issuing the Certificate in Form 5 as per Rules 8 and 18 of the 2022 Rules. The Court noted that Form 5 specifically lists the application to be made and Certificate to be given thereon by the Magistrate together. The Court thus opined that an application to the Magistrate was a precursor to the certificate issued by him which was absent in the Certificate issued in the present case.
The Court opined that purpose of the enactment of Section 52-A was to certify the correctness of the inventory so prepared, however, if the mandatory requirement described under the 2022 Rules were not complied with, it then prima facie vitiated the statutory procedure and rendered the alleged document infructuous. The Court stated that in the present case, the non-compliance leaves a lacuna which formed a reason for grant of Bail and if the statute required the statutory Authority to act in a particular manner, it was not open to the said Authority to follow a different procedure or regime contrary to the established and prevalent Rules/procedure.
The Court noted that in the Arrest/Court Surrender Form and more particularly, Column No. 8 which required to record the articles recovered from the individuals arrested, were left blank for all the four accused persons except in the case of one of the accused, where the recording is ‘Nil’. The Court opined that how come no articles were recovered from Accused 4 and 5 when the prosecution case was based upon the alleged material recovered from them which was not relating to contraband.
The Court opined that crime where offences under the NDPS Act were attracted, an act which was comprehensive, aimed to strike a delicate balance between Interest of the Nation and Rights of Accused. Thus, it was the duty of the Investigating Authority to ensure strict compliance of procedure as liberty of an accused was too precious of a right to be taken away based on flimsy/arbitrary procedure.
The Court opined that drug trafficking was a serious crime, and the menace of drug traffickers was prevalent not just in India but across the globe. Drug/psychotropic addiction was a quasi-pandemic. The miscreants dealing in drugs in the society needed to be dealt with an iron fist, but it could not be at the cost of liberty of an individual. The Court further opined that if courts would venture into the exercise of mechanically rejecting bail applications on every occasion when the embargo under Section 37 was attracted, then it would result in an unjust situation where even an innocent individual might be arrested in an arbitrary manner and be made to languish in jail for years pending trial indefinitely.
The Court referred to a communication dated 18-11-2024 issued by the National Police Mission, Bureau of Police Research and Development (‘BPRD’) to Police of all states/Union Territories in respect of Model FIR in registration of cases in narcotics under Section 52 of the NDPS Act and associated documents. The said communication was issued as in recent times, several NDPS cases resulted in “Acquittal” in the Courts due to the procedural irregularities such as compliance of Section 52 of the NDPS Act.
The National Police Mission Division of BPRD prepared a model FIR for the registration of cases under Section 52 of the NDPS Act and other associated documents which were finalized in consultation with Investigating Officers under five heads, (i) Model FIR; (ii) Flow Chart; (iii) SOP; (iv) Guidelines; and (v) Template format. The Court stated that via the said communication dated 18-11-2024, BPRD shared guidelines with the documents with all States and Union Territories requiring to further disseminate them directly to the Police Officers on the ground so that maximum benefit could be derived from the same during investigation of NDPS cases.
The Court directed the Registry of this Court to send a copy of the present Judgement to all Commissioners of Police/Superintendent of Police in each district of the state for implementing the provisions of the NDPS Act and the 2022 Rules strictly through the investigating agencies authorized under the NDPS Act. Thus, the Court issued the said directions so that the statutory procedure for issuing the certificate under Section 52-A(3) was followed as per Form 5 of the 2022 Rules by all prosecuting agencies under the NDPS Act which would eliminate any ambiguity of procedure as transgression.
The Court relied on Narcotics Control Bureau v. Kashif, 2024 SCC OnLine SC 3848, wherein the Supreme Court explained the prevalent position with respect to the procedural issues prevalent prior to enactment of the 2022 Rules which was based upon the Standing Instructions 1/88 and 1/89 and Gazette Notification of 2007 etc. However, after coming into effect of the 2022 Rules, the statutory Rules not only apply but were also required to be followed by the prosecution strictly without any deviation. If Rules prescribe issuance of certificate under Section 52-A in Form 5, it must be so and not in any other format devised by the prosecution and if Statutory Rules were not followed, it amounted to clear transgression of the provisions of Section 52-A.
The Court stated that Form 5 precisely prescribed that the application and the certificate to be appended together and in continuity with each other and they both were inextricably linked if they were read together. The Court noted that in the present case, the application was missing, and the Magistrate’s certificate was merely printed below and was not in accordance with Form 5 under Rules 8 and 18(1) and Section 52-A(3) of the NDPS Act. Thus, the directions in the present case were given for uniformity in procedure to be adopted by the Prosecution Agencies.
The Court opined that there was a need to invest resources in educating statutory officers to enable them to discharge their wide powers with legal prudence and in accordance with the statute/Rules as prescribed. To a certain extent it might help in achieving a drug free society if the laws and Rules were strictly implemented and followed leaving no room for doubt or vitiation of procedure.
The Court allowed the present applications and directed that all the four accused persons should be released on bail on furnishing P.R. Bond of Rs 50,000 each with one or two sureties in the like amount.
[Chandrabhan Janardhan Yadav v. State of Maharashtra, 2025 SCC OnLine Bom 462, decided on 04-03-2025]
Advocates who appeared in this case:
For the Applicant: Ayaz Khan a/w Dilip Mishra, Zehra Charania and Mallika Sharma, Advocates for Applicants in Criminal Bail Application Nos. 2254 of 2024, 262 of 2025 and 266 of 2025; Supriya Arun Pandey i/b Karmarkar and Associates, Advocates for Applicant in Criminal Bail Application Nos. 4709 of 2024.
For the Respondent: Hitendra J. Dedhia, APP for Respondent 1—State in Criminal Bail Application Nos. 2254 of 2024, 262 of 2025 and 266 of 2025; Sukanta Karmakar, APP for Respondent 1—State in Criminal Bail Application Nos. 4709 of 2024.
Buy Penal Code, 1860 HERE
1. Corresponding Section 336 (2) of the Bharatiya Nyaya Sanhita, 2023 (‘BNS, 2023’)
2. Section 336(3) of BNS, 2023
3. Section 340(2) of BNS, 2023
4. Section 341(2) of BNS, 2023