In a bail application filed before the Allahabad High Court seeking release regarding a First Information Report (FIR) registered for commission of offences under Sections 8/20/29/60 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), a Single Judge Bench of Justice Subhash Vidyarthi granted bail to the applicant considering the defects in search and recovery.
The FIR, initiated by a Sub-Inspector, mentioned that he received information that a person was about to sell and purchase Ganja at some place in district Amethi. With the help of the informer, the police team apprehended the applicant while he was sitting in the driving seat of a Baleno car and confessed being in possession of Ganja. The applicant was made aware of his rights to be searched in the presence of a Magistrate or an authorised Gazetted Officer and the applicant chose to be searched on the spot in the presence of an authorised Gazetted Officer.
Upon search, a mobile, Rs. 30,600/- cash, and an Aadhar card were recovered from the applicant apart from Ganja. He confessed that he had kept some more Ganja hidden at his home. An authorization letter under Section 41(2) of the NDPS Act was obtained from the Deputy Superintendent of Police present on the spot and a blue coloured drum containing Ganja was dug out from the earth in the applicant’s house along with three sacks hidden under some hay. The total weight of the contents was found to be 100.200 kgs.
In his affidavit, the applicant pleaded innocence and stated that he was involved in three other criminal cases. The applicant submitted that the samples had not been drawn in the presence of a Magistrate and therefore, the mandatory provisions of Rule 9 of the 2022 Rules had been violated. It was also contended that since the samples had not been drawn in duplicate from all the bundles recovered, Rule 10 of the 2022 Rules had also been violated.
The Court referred to Taylor v. Taylor [L.R.] 1 Ch. 426 wherein it was propounded that where the law prescribes a manner for doing a thing, the thing has to be done in that manner only or not at all. This principle, the Court said, was followed by the Privy Council in Nazir Ahmad v. King Emperor AIR 1936 PC 253. Hence, the Court found that when the State had prescribed a procedure is Rules 9 and 10 of the 2022 Rules, prima facie, the prosecution had committed an illegality.
It was noted that the three judge bench judgment in Tofan Singh v. State of T.N. (2021) 4 SCC 1 and the coordinate bench judgment in Makhan Singh v. State of Haryana (2015) 12 SCC 247 had not been taken into consideration in the subsequent two judge bench judgments in Narcotics Control Bureau v. Kashif (2024) 11 SCC 372 and Mehboob Shah v. State of Madhya Pradesh 2026 SCC OnLine SC 1366. Therefore, the Court said, that to the extent of conflict, the earlier judgments would prevail as per law laid down in Iveco Magirus Brandschutztechnik GMBH v. Nirmal Kishore Bhartiya (2024) 2 SCC 86.
Considering the facts of the case, the Court noted that the police team travelled from Barabanki to Amethi on their private vehicles and that no government vehicle was used to perform a governmental duty of recovering narcotics and arresting the accused. The Court said that this raised a doubt against the prosecution story as the number of vehicles used in the operation and their registration numbers had also not been disclosed. It was also noted that no recovery memo was prepared on the recovery spot.
Noting that the packages allegedly recovered from the applicant and his house were not identical, the Court said that it was necessary to draw samples from each recovered bundle, but this was also not done in the present case. The Court stated that although the recovery was said to have been done in the presence of the Deputy Superintendent of Police, neither her signatures nor the alleged independent witnesses’ signatures were present on the recovery memo.
The Court stated that the aforementioned defects in search and recovery were sufficient for making out a case for the applicant’s enlargement on bail. Thus, the application was allowed and the applicant was directed to be released on bail upon furnishing a personal bond and two sureties of like amount, subject to him not tampering the prosecution evidence, not pressurizing prosecution witnesses, and his appearance on all dates fixed by the trial court.
