Aslam P.A vs The Sub Inspector

This application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, BNSS), seeking regular bail.

The applicant is the accused No.1 in Crime No.9/2026 of Narcotics Control Bureau, Cochin, Ernakulam District. The offences alleged are punishable under Sections 8(c), 20(b)(ii)(C), 23, 25, 27A, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, NDPS Act).

The prosecution case, in short, is that based on credible information, on 10/6/2026 at 7.45 p.m, the NCB Cochin Zonal Unit seized 604 grams of Charas from the residence of the applicant wherein the accused Nos.2 and 3 were also present. During the interrogation of the applicant, he disclosed that the seized contraband had been sourced from a Keralite drug trafficking gang based in Greater Noida, Uttar Pradesh. It is further alleged that the applicant stated that the remaining contraband was concealed in the rented premises of the accused Nos. 4 and 5 at Greater Noida, Uttar Pradesh. Thereafter, the officers of the NCB Cochin Zonal Unit, along with the officials of the NCB Delhi Zonal Unit conducted a search at Shree Radha Sky Gardens Apartment Complex, Greater Noida (West), Uttar Pradesh, where the accused Nos.4, 6 and 7 were present. Subsequently, on 11.6.2026 at 9.00 p.m, in the presence of the independent witnesses, a thorough search of the said flat was conducted, which resulted in the recovery of 36.735 kg of Hydroponic Cannabis and 3.942 kg of Charas. The applicant thereby committed the offences.

I have heard Sri.P.Mohamed Sabah, the learned counsel for the applicant and Sri.R.Vinuraj, the learned Special Public Prosecutor for NCB. Perused the case diary.

The learned counsel for the applicant submitted that admittedly the seizure of the contraband was effected based on prior information by conducting search in the residence of the applicant and the flat occupied by the accused Nos.4 and 5 between sunset and sunrise and hence it is obligatory on the part of the detecting officer either to obtain a warrant from the concerned judicial Magistrate or prepare a grounds of belief regarding the grounds which prompted him to conduct a search in the building without obtaining warrant and send a copy of the same to the immediate superior officer as mandated under Section 42 of the NDPS Act. It is further submitted that there is total non compliance with the proviso to Section 42(1) of the NDPS Act and hence the applicant is entitled for bail. On the other hand, the learned Special Public Prosecutor for NCB submitted that the case is covered by Section 41(1) of the NDPS Act and not Section 42 and the provisions of Section 41 of the NDPS Act have been duly complied with.

It is true that the seizure was effected based on prior information by conducting search in a building between sunset and sunrise. As per Section 41(2) of the NDPS Act, any officer empowered by general or special order of the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in that behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under the Act or that any Narcotic Drug or Psychotropic Substance or controlled substance in respect of which any offence under the 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 freezing or forfeiture under Chapter VA of the Act is kept or concealed in any building, conveyance or place, may authroise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such person or search a building, conveyance or place. Thus, the empowered officer who falls under Section 41(2) of the NDPS Act can authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to conduct search of a building at any time including between sunset and sunrise. The notification No.8/85 dated 14/11/1985 as amended vide SO 3778 would show that the Central Government has empowered officers in the rank of Inspector in the department of Narcotic Control Bureau or above with the powers specified in sub-section (2) of Section 41 of the NDPS Act within the area of their respective jurisdiction. The seizure mahazar would show that the Deputy Superintendent of Police, who is the above rank of Inspector has empowered the detecting officer who is also superior in rank to a peon, sepoy or constable to search the building. The learned counsel for the applicant submitted that the officer mentioned in the notification mentioned above can authorise to exercise powers within the area of their respective jurisdiction only and in this case since the search was conducted in Uttar Pradesh, it was without jurisdiction. On the other hand, the learned Special Public Prosecutor for NCB submitted that the officers of NCB have power to exercise jurisdiction all over India. However, the question regarding the jurisdiction of the empowered officer cannot be adjudicated in this bail application. At any rate, it appears from the available records that there is substantial compliance of Section 41(2) of the NDPS Act. Therefore, the contention of the applicant that the arrest, search and seizure are vitiated for non compliance with Section 42 of of the NDPS Act cannot be accepted.

Considering the nature of the crime, the gravity of the offence, the complicity of the applicant in it, and the facts and circumstances mentioned above, I am of the view that the applicant cannot be released on bail at this stage. The bail application, accordingly, is dismissed.