[NDPS Act] Non-compliance with formalities by police not ground for bail: Karnataka High Court

The Karnataka High Court recently held that a person accused under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) cannot be granted bail on the ground of technicality, and non-compliance with formalities by police cannot be considered during the bail stage [Joswin Lobo v. State of Karnataka]..Justice HP Sandesh said that such issues relating to non-compliance with the mandatory provisions by police is a matter of fact that can be considered at the stage of trial but not during bail plea. "The judgments referred by this Court and the Apex Court are clear that the bail cannot be granted on the ground of technicality and non-compliance of formalities cannot be considered during the bail stage," the High Court said.The Court, therefore, declined to grant bail to a petitioner accused of trafficking narcotic drugs. Since a commercial quantity of manufactured drugs was recovered from the possession of the petitioner, he cannot be released on bail on ground of non-compliance of mandatory provisions by the police, the Court said.It added that it cannot evaluate the evidence on record while exercising discretion under Section 439 (Special powers of High Court regarding bail) of the Code of Criminal Procedure (CrPC)."Under Section 37 of the NDPS Act, the Court cannot enlarge the petitioner on bail unless there is a reasonable ground that the petitioner is not guilty and he is not likely to involve in similar offences in future. The Court also has to look into the fact that the drugs which are seized are manufactured drugs which are in conscious possession of this petitioner which was recovered from the pocket of this petitioner and the same is also a commercial quantity and it is also settled law that while granting bail, the Court has to look into the interest of the society at large and if such acts are considered in a lenient way, it affects the society at large," the Court observed. .The petitioner was accused of trafficking narcotic drugs such as ecstasy pills, hash, and LSD strips to college students and officer-goers. He was charged with offences under Sections 8 (c) (prohibition to produce, manufacture, possess, sell narcotic substances) 20(ii)(b)(cannabis lesser than commercial quantity but greater than small quantity), 21(c) (manufactured drugs, commercial quantity) 22(c) (psychotropic substances, commercial quantity), 23(c) (illegal import into India), and 27(A) (financing illicit traffic and harbouring offenders) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act)..Senior Advocate Hashmath Pasha, representing the petitioner-accused, said that the officer who conducted the raid was not in charge of the police station, which violates Section 52(3) (persons arrested and articles seized to be forwarded to officer-in-charge of the nearest police station) of the NDPS Act.Further, the Gazetted Officer and the Assistant Commissioner of Police are one and the same person, also a part of the raid, and conducted the search of the accused himself, it was pointed out..The Court noted that the accused persons had given consent to be searched by the Assistant Commissioner of Police. When personal search was made in the presence of Assistant Commissioner of Police who is also a Gazetted Officer, the contention that he belongs to the same department is not a ground to disbelieve the prosecution, the Court said.Further, the contention that the officer who registered the case was not an officer in-charge of the police station and that is against the NDPS Act is a matter of fact to be decided during the course of trial, the Court said.In this regard, the Court referred to the judgement of the Supreme Court in Superintendent, Narcotics Control Bureau Chennai v. R Paulsamy in which it was held that non-compliance with formalities of NDPS Act is not a ground to enlarge an accused on bail, but can be tested during the course of trial..Pertinently, the Court also observed that under Section 37 (Offences to be cognisable and non-bailable) of the NDPS Act, the Court cannot release an accused person on bail unless there is a reasonable ground to believe that he is not guilty and is unlikely to be involved in similar offences in the future. In the present case, 150 packets of MDMA pills weighing 56.5 grams which is commercial quantity and 250 grams of Hashish were recovered from the petitioner-accused, and information received from the arresting officer made it clear that the petitioner was trafficking manufactured drugs..The Court observed that the special enactment of NDPS was brought into force as the Indian Penal Code (IPC) was found not sufficient to combat such offences which are against society at large.It, therefore, dismissed the bail petition. .Senior Advocate Hashmath Pasha represented the petitioner, and advocate Krishna Kumar KK appeared on behalf of the State. .[Read Order]