Case Note & Summary
The petitioner, Nissar, filed a criminal petition under Section 439 of the Code of Criminal Procedure, 1973, seeking bail in Crime No.19/2020 registered at Kutta Police Station, Kodagu, for the offence punishable under Section 20(a)(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The case arose from an information received by the Superintendent of Police on 13.05.2020 at about 11:00 am that one Mukkatira Bopanna had grown ganja plants and was trying to sell them to the petitioner. The police proceeded to Poojekallu village and allegedly recovered ganja plants from the land of Mukkatira Bopanna. The petitioner was arrested and remanded to judicial custody. The petitioner claimed innocence and argued that no recovery was made from his possession and that the mandatory provisions of Section 50 of the NDPS Act were not complied with. The respondent-State opposed the bail application, citing the seriousness of the offence and the rigours of Section 37 of the NDPS Act. The court analyzed the facts and found that the information was received by the Superintendent of Police, who is a gazetted officer, and the search was conducted by him. However, the court noted that the mandatory requirements of Section 50 of the NDPS Act were not complied with as the petitioner was not informed of his right to be searched before a gazetted officer or a magistrate. The court also observed that the alleged recovery of ganja plants was from the land of Mukkatira Bopanna and not from the petitioner. The court held that the rigours of Section 37 of the NDPS Act are not attracted in this case as there was no recovery from the petitioner and the mandatory provisions of Section 50 were not complied with. Consequently, the court allowed the petition and granted bail to the petitioner on certain conditions.
Headnote
A) Criminal Procedure Code, 1973 - Section 439 - Bail - NDPS Act - The petitioner sought bail for offence under Section 20(a)(b) of NDPS Act. The court considered the mandatory compliance of Section 50 of NDPS Act regarding personal search and the fact that no recovery was made from the petitioner. (Paras 1-5) B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Compliance - Personal Search - The court noted that the information was received by the Superintendent of Police, who is a gazetted officer, and the search was conducted by him. However, the court found that the mandatory requirements of Section 50 were not complied with as the petitioner was not informed of his right to be searched before a gazetted officer or a magistrate. (Paras 5-6) C) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20 - Punishment for cultivation, etc. - The court observed that the alleged recovery of ganja plants was from the land of Mukkatira Bopanna and not from the petitioner. The petitioner was only alleged to be a purchaser. (Paras 4-5) D) Bail - NDPS Act - Rigours of Section 37 - The court held that the rigours of Section 37 of NDPS Act are not attracted in this case as there was no recovery from the petitioner and the mandatory provisions of Section 50 were not complied with. (Para 6)
Issue of Consideration
Whether the petitioner is entitled to bail under Section 439 of Cr.P.C. for the offence punishable under Section 20(a)(b) of the NDPS Act, 1985, considering the mandatory requirements of Section 50 of the NDPS Act and the facts of the case.
Final Decision
The petition is allowed. The petitioner is ordered to be enlarged on bail in Crime No.19/2020 of Kutta Police Station for the offence punishable under Section 20(a)(b) of NDPS Act, subject to certain conditions.
Law Points
- Bail
- Narcotic Drugs and Psychotropic Substances Act
- 1985
- Section 20
- Section 50
- Compliance with mandatory provisions
- Recovery from accused
- Personal search
- Information received by police officer
- Reasonable grounds for belief
