2021:BHC-AS:17385

[Link]

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

BAIL APPLICATION NO.185 OF 2021

FOLARIN ABDULLASEEZ ANDOYIN )...APPLICANT

V/s.

THE STATE OF MAHARASHTRA )...RESPONDENT

[Link] Mishra a/w. [Link] Khan, Advocate for the

Applicant.
[Link], APP for the Respondent – State.

CORAM : V. G. BISHT, J.

RESERVED ON : 18th NOVEMBER 2021

PRONOUNCED ON : 29th NOVEMBER 2021

P.C. :

1 The present application has been moved by the

applicant under Section 439 of the Code of Criminal Procedure in

Crime No.616 of 2019 registered with Police Station

Chaturshrungi, Pune, for offences punishable under Section 8(c)

and 21(c) of Narcotic Drugs and Psychotropic Substances Act

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(NDPS Act), Section 65(E) of Maharashtra Prohibition Act and

under Section 14 of Foreigner Citizen Act.

2 Informant is attached with Social Security

Department, Crime Branch, Pune City as Inspector of Police. As

per information received from her superiors that in Baner,

Oundh, Pune, Nigerians are selling drugs like cocaine and in

order to apprehend them, she formed a raiding team with police

personnel and staff members including the panch witnesses.

3 They reached at around 4.30 hours at Kalamkar

Chowk in Baner, Pune, and on public road, in front of Mahi Rose

Nursery, found a silver Honda CRV bearing number MH 43 R9

245 parked on the side of the road. A Nigerian person was

standing with a black cloth bag in his hand. The moment he saw

the raiding team, he hurriedly tried to get in his car. The raiding

team grew suspicious and surrounded the car. On being enquired,

he introduced himself as Folarin Abdullaseez Andoyin. After

apprising him of his right of search, to which he declined, the

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raiding party carried out the search in presence of panchas and

found 488 grams and 490 milligrams white cocaine powder in a

white transparent plastic bag worth Rs.48,62,800/- . The car

was also searched and cash of Rs.8,39,490/- along with other

articles was found. After taking the necessary sample, First

Information Report (FIR) came to be lodged.

4 [Link] Mishra, learned counsel for the

applicant, has advanced only legal submission in the form that

there is total non-compliance of mandatory provision of NDPS

Act, namely, Section 42. Despite there being previous

information that the person selling the drug was a Nigerian

national, according to the learned counsel, no reasons are

recorded for the non-compliance of Section 42 of the NDPS Act.

In view of this, the bar of Section 37 of the NDPS Act will not be

applicable to the case in hand. For this reason alone, the

applicant deserves to be released on bail, argued learned counsel.

The learned counsel also placed reliance on Sarija Banu alias

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Janarthani alias Janani and Another vs. State through Inspector

of Police1 and Boota Singh and Others vs. State of Haryana2.

5 [Link], learned APP, on the other hand, opposed

the submissions by submitting that there is no applicability of

Section 42 but it is Section 43 of the NDPS Act, which would be

applicable in the facts and circumstances of the case.

6 Perused the FIR and the investigation papers. The

controversy seems to be the applicability of Section 42 or Section

43 of the NDPS Act to the case in hand. Section 42 and 43 of the

NDPS Act reads as under :

“42. Power of entry, search, seizure and arrest

without warrant or authorisation.— (1) Any such

officer (being an officer superior in rank to a peon,

sepoy or constable) of the departments of central

excise, narcotics, customs, revenue intelligence or

any other department of the Central Government

1 (2004) 12 Supreme Court Cases 266
2 2021 SCC Online SC 324

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including para-military forces or armed forces as is

empowered in this behalf by general or special

order by the Central Government, or any such

officer (being an officer superior in rank to a peon,

sepoy or constable) of the revenue, drugs control,

excise, police or any other department of a State

Government as is empowered in this behalf by

general or special order of the State Government, if

he has reason to believe from persons knowledge

or information given by any person and taken

down in writing that any narcotic drug, or

psychotropic substance, or controlled substance in

respect of which an offence punishable under this

Act has been committed or any document or other

article which may furnish evidence of the

commission of such offence or any illegally

acquired property or any document or other article

which may furnish evidence of holding any illegally

acquired property which is liable for seizure or

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freezing or forfeiture under Chapter VA of this Act

is kept or concealed in any building, conveyance or

enclosed place, may between sunrise and sunset,—

(a) enter into and search any such building,

conveyance or place;

(b) in case of resistance, break open any door and

remove any obstacle to such entry;

(c) seize such drug or substance and all materials

used in the manufacture thereof and any other

article and any animal or conveyance which he has

reason to believe to be liable to confiscation under

this Act and any document or other article which

he has reason to believe may furnish evidence of

the commission of any offence punishable under

this Act or furnish evidence of holding any illegally

acquired property which is liable for seizure or

freezing or forfeiture under Chapter VA of this Act;

and

(d) detain and search, and, if he thinks proper,

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arrest any person whom he has reason to believe to

have committed any offence punishable under this

Act:

Provided that in respect of holder of a licence for

manufacture of manufactured drugs or

psychotropic substances or controlled substances,

granted under this Act or any rule or order made

thereunder, such power shall be exercised by an

officer not below the rank of sub-inspector.

Provided further that if such officer has reason to

believe that a search warrant or authorisation

cannot be obtained without affording opportunity

for the concealment of evidence or facility for the

escape of an offender, he may enter and search

such building, conveyance or enclosed place at any

time between sunset and sunrise after recording

the grounds of his belief.

(2) Where an officer takes down any information

in writing under sub-section (1) or records grounds

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for his belief under the proviso thereto, he shall

within seventy-two hours send a copy thereof to his

immediate official superior.”

“43 Power of seizure and arrest in public

place.—Any officer of any of the departments

mentioned in section 42 may— (a) seize in any

public place or in transit, any narcotic drug or

psychotropic substance or controlled substance in

respect of which he has reason to believe an

offence punishable under this Act has been

committed, and, along with such drug or

substance, any animal or conveyance or article

liable to confiscation under this Act, any document

or other article which he has reason to believe may

furnish evidence of the commission of an offence

punishable under this Act or any document or other

article which may furnish evidence of holding any

illegally acquired property which is liable for

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seizure or freezing or forfeiture under Chapter VA

of this Act;

(b) detain and search any person whom he has

reason to believe to have committed an offence

punishable under this Act, and if such person has

any narcotic drug or psychotropic substance or

controlled substance in his possession and such

possession appears to him to be unlawful, arrest

him and any other person in his company.

Explanation.—For the purposes of this section, the

expression "public place" includes any public

conveyance, hotel, shop, or other place intended

for use by, or accessible to, the public.”

7 In Boota Singh and Others (supra) the Hon'ble Apex

Court has observed as under in paragraph 13 :

“13 In Karnail Singh vs. State of Haryana 3 , the

Constitution Bench of this Court concluded:-

3 (2009) 8 Supreme Court Cases 539

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“35 In conclusion, what is to be noticed is that

Abdul Rashid [(2000) 2 SCC 513 : 2000 SCC

(Cri) 496] did not require literal compliance

with the requirements of Sections 42(1) and

42(2) nor did Sajan Abraham [(2001) 6 SCC

692 : 2001 SCC (Cri) 1217] hold that the

requirements of Sections 42(1) and 42(2) need

not be fulfilled at all. The effect of the two

decisions was as follows:

(a) The officer on receiving the information

[of the nature referred to in sub-section (1) of

Section 42] from any person had to record it in

writing in the register concerned and forthwith

send a copy to his immediate official superior,

before proceeding to take action in terms of

clauses (a) to (d) of Section 42(1).

(b) But if the information was received when

the officer was not in the police station, but

while he was on the move either on patrol duty

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or otherwise, either by mobile phone, or other

means, and the information calls for immediate

action and any delay would have resulted in the

goods or evidence being removed or destroyed,

it would not be feasible or practical to take

down in writing the information given to him, in

such a situation, he could take action as per

clauses (a) to (d) of Section 42(1) and

thereafter, as soon as it is practical, record the

information in writing and forthwith inform the

same to the official superior.

(c) In other words, the compliance with the

requirements of Sections 42(1) and 42(2) in

regard to writing down the information received

and sending a copy thereof to the superior

officer, should normally precede the entry,

search and seizure by the officer. But in special

circumstances involving emergent situations, the

recording of the information in writing and

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sending a copy thereof to the official superior

may get postponed by a reasonable period, that

is, after the search, entry and seizure. The

question is one of urgency and expediency.

(d) While total non-compliance with

requirements of sub- sections (1) and (2) of

Section 42 is impermissible, delayed compliance

with satisfactory explanation about the delay

will be acceptable compliance with Section 42.

To illustrate, if any delay may result in the

accused escaping or the goods or evidence being

destroyed or removed, not recording in writing

the information received, before initiating

action, or non-sending of a copy of such

information to the official superior forthwith,

may not be treated as violation of Section 42.

But if the information was received when the

police officer was in the police station with

sufficient time to take action, and if the police

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officer fails to record in writing the information

received, or fails to send a copy thereof, to the

official superior, then it will be a suspicious

circumstance being a clear violation of Section

42 of the Act. Similarly, where the police officer

does not record the information at all, and does

not inform the official superior at all, then also it

will be a clear violation of Section 42 of the Act.

Whether there is adequate or substantial

compliance with Section 42 or not is a question

of fact to be decided in each case. The above

position got strengthened with the amendment

to Section 42 by Act 9 of 2001.”

(Emphasis added)

8 In the case in hand, a bare reading of the FIR would

show that the informant Police Inspector was very much in the

police station when she received the information from her

superiors and thus had sufficient time to record in writing the

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information so received. However, it appears that she did not

record in writing the information received by her qua the

applicant. No reasons, much less satisfactory reasons, are

forthcoming on record.

9 Similarly, in the case of Karnail singh (supra) the

Hon'ble Apex Court made following observations at paragraph

26:

“26 The material difference between the

provisions of Sections 42 and 43 is that Section 42

requires recording of reasons for belief and for

taking down of information received in writing

with regard to the commission of an offence before

conducting search and seizure, Section 43 does not

contain any such provision and as such while acting

under Section 43 of the Act, the empowered officer

has the power of seizure of the article etc. and

arrest of a person who is found to be in possession

of any narcotic drug or psychotropic substance in a

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public place where such possession appears to him

to be unlawful.”

10 Further, in case of Boota singh (supra) the Hon'ble

Apex Court made following observations at paragraph 15 :

“15 The evidence in the present case clearly

shows that the vehicle was not a public conveyance

but was a vehicle belonging to accused Gurdeep

Singh. The Registration Certificate of the vehicle,

which has been placed on record also does not

indicate it to be a Public Transport Vehicle. The

explanation to Section 43 shows that a private

vehicle would not come within the expression

“public place” as explained in Section 43 of the

NDPS Act. On the strength of the decision of this

Court in Jagraj Singh alias Hansa , the relevant

provision would not be Section 43 of the NDPS Act

but the case would come under Section 42 of the

NDPS Act.

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11 Having regard to the facts of the present case,

admittedly, the applicant was found in his car which by no stretch

of imagination can be termed as a public conveyance. The

explanation to Section 43 NDPS Act shows that a private

conveyance would not come within the expression “public place”

but the case would come under Section 42 of the NDPS Act.

12 From the above it is clear that there was no

compliance of Section 42(1) of NDPS Act. Even if Section 42 is

seen carefully, one will note that Section 42(1) and 42(2) are

with regard to writing down the information received and

thereafter sending a copy thereof to superior officer should

normally precede the entry, search and seizure by the officer. But

in special circumstances, involving any emergent situation, the

recording of the information in writing and sending a copy

thereof to the officer superior may get postponed by a reasonable

period, that is after the search, entry and seizure. However, there

is no such obtaining situation in the case in hand.

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13 The sum and substance of above discussion is that

there is non-compliance of Section 42 of the NDPS Act which is

mandatory and thus the applicant has made out a case for bail.

14 In view of this, the bar under Section 37(1)(ii) of the

NDPS Act would not be applicable to the case in hand.

15 In view of above, I am inclined to allow the

application. Hence, I pass the following order :

ORDER

(i) Applicant – Folarin Abdullaseez Andoyin shall be released on

bail in Crime No.616 of 2019 registered with Police Station

Chaturshrungi, Pune, on his executing [Link] in the sum

of Rs.50,000/- with one or two sureties in like amount.

(ii) As a condition of this order, the applicant shall not tamper with

the prosecution evidence.

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(iii) The applicant shall not directly or indirectly, make any

inducement, threat or promise to any person acquainted with

the facts of the case, so as to dissuade him from disclosing such

facts to the court or to the Police Officer.

(iv) The applicant should cooperate the trial Court for expeditious

disposal of the Special Case pending against them.

(v) The applicant should not repeat similar crime in future. If it is

found that the applicant is repeating commission of similar

offence in future, the prosecution is at liberty to get the bail of

the applicant cancelled.

(vi) The applicant should surrender his passport to the Police

Station Chaturshrungi, Pune, and he shall not leave India

without prior permission of the trial Court.

(vii) Bail before the trial Court.

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(viii) Parties to act on copy of this order duly authenticated by

the Sheristedar of this Court.

(ix) It is made clear that the observations made herein are prima

facie and the trial Court shall decide the case on its own

merit, in accordance with law, uninfluenced by the

observations made in this order.

(x) The application is allowed in the aforesaid terms and stands

disposed off accordingly.

(V. G. BISHT, J.)

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