Calcutta High Court (Appellete Side)
Raj Kumar Halder Alias Siraj vs Unknown on 5 August, 2025
05.08.2025
Item no. 20 & 21
Ct. No. 29
Rejected
SR
C.R.M. (NDPS) 511 of 2025
In Re:- An application for Bail under section 483 of
Bharatiya Nagarik Suraksha Sanhita, 2023
corresponding to Section 439 of the Code of Criminal
Procedure, 1973 in connection with NDPS 05/24 S.T.
No.01(09)2024 arising out of Baruipur Police Station
Case No.104 of 2024 dated 22.01.24 under Section
21(c)/29 of the NDPS Act, 1985.
In the matter of : Raj Kumar Halder alias Siraj
.... Petitioner.
With
C.R.M. (NDPS) 655 of 2025
In the matter of : Sanjib Dolui
.... Petitioner.
Mr. Souvik Mitter
Mr. Angshuman Chakraborty ...for the Petitioner
(in both the matters)
Mr. Ranadeb Sengupta
Mr. Subhasish Datta ... for the State.
(in item no. 20)
Mr. Md. Adil Badr
Mr. Samarjit Balial ... for the State
(in item no. 21)
Prosecution case is that 250 grams of Heroin was
recovered from two Scooties for which four accused
persons are involved out of which two are the present
petitioners. It is further submitted that the petitioners
are in custody for about one year seven months.
Mr. Mitter, learned counsel appearing on behalf of
both the petitioners submits that prosecution proposed
to examine thirteen witnesses out of which they could
examine so far only one witness, namely, PW 1 and from
his statement, it is clear that the prosecution has not
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complied mandatory provision of Section 42(2) of the
NDPS Act, and, as such, the entire trial is liable to be
vitiated. He further submits that since there was no
compliance of Section 42 of the NDPS Act, there is no
ground for believing that the petitioners have committed
alleged offence. In this context, he further contended
that PW 1 in his deposition has stated that on
21.01.2024
he received a source information, diarized
the same and as per instruction of IC, Baruipur Police
Station, had been to the place to act on the basis of the
information but in the cross-examination he stated that
the copy of the said GDE has not been forwarded to his
superior, which reflects that there was a flagrant
violation of Section 42 of the NDPS Act, since the
information was not communicated to his superior in
writing stating his reasons for belief. In this context, the
petitioners relied upon the judgment of Sarija Band @
Janarthani @ Janani & Anr. v. State Through Inspector
of Police reported in (2004) 12 SCC 266 wherein the
contention of the prosecution was that though
compliance of Section 42 is a mandatory provision but it
cannot be considered while considering a bail
application, which was accepted by the High Court.
However, when the matter came up before Apex Court
bail was granted to the petitioner. In this context, he
also relied upon the judgment of this Court in Rajendra
Kumar Mohta v. Abhijit Das Gupta & Ors. reported in
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1999 SCC Online Cal 368 and another unreported
judgment of this Court passed in CRA 118 of 2019
wherein this Court held while disposing an appeal
observed that non-compliance of Section 42 of the NDPS
Act vitiated the trial and the appellants were accordingly
acquitted.
Mr. Sengupta and Md. Adil Badr, learned counsel
appearing on behalf of the State in the respective cases,
opposed to the bail prayer contending that there was
compliance of both Sections 42(1) as well as Section
42(2) of the NDPS Act. They further contended that in
the instant case superior was a part of raiding team and,
as such, it would not come to the aid of petitioners’ bail
application. He further submits that whether there was
any non-compliance of Section 42 or not and for which,
whether search and seizure made by the investigating
authority will be vitiated or not, will be decided at the
time of trial and the prosecution is yet to examine twelve
more witnesses. He further submits that in compliance
of Section 42(2) of the NDPS Act, the report was given to
the superior within 72 hours, which is reflected in the
evidence of PW 1. In this context, Md. Adil Badr relied
upon the judgment of the Apex Court in Karnail Singh v.
State of Haryana reported in (2009) 8 SCC 539 and
contended that the provision laid down in Section 42
should not be misused by the wrongdoers as a major
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ground either for acquittal or for granting bail and as
held by the Apex Court, this provision should be taken
as discretionary measure, which should check the
misuse of the Act rather than providing an escape of the
hardened drug-peddlers.
Having considered the submissions made on
behalf of both the parties, it appears that the prosecution
is still required to examine twelve more witnesses and it
is too early to come to a conclusion on the basis of the
evidence of PW 1 that entire search and seizure in
connection with the present proceeding is liable to be
vitiated or that there was total non-compliance of Section
42 of the Act. Since, the material placed before me
discloses that there are, prima facie, reasons to believe
that the accused person is guilty of committing the
alleged offence, I find that the restrictions imposed under
Section 37 of the NDPS Act clearly attracts in respect of
the present two petitioners in both the cases and, as
such, the prayer for bail made by them are rejected.
However, the Trial court is requested to expedite
the trial and to conclude the same within a reasonable
period of time keeping it in mind that the fundamental
right of speedy trial of the accused persons is guaranteed
under Article 21 of the Constitution of India.
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Accordingly, CRM (NDPS) 511 of 2025 and CRM
(NDPS) 655 of 2025 are disposed of.
Urgent photostat certified copy of this order, if
applied for, be given to the parties upon compliance of all
requisite formalities.
(Dr. Ajoy Kumar Mukherjee, J.)