- 1 - HC-KAR NC: 2026:KHC:20170 CRL.P No. 14583 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF APRIL, 2026 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL CRIMINAL PETITION NO. 14583 OF 2025 (439(Cr.PC) / 483(BNSS)) BETWEEN: MOHAMMAD ARSHAD KHAN S/O. NAZEER AHMED KHAN AGED ABOUT 29 YEARS R/AT NO.6/268, MOULANA AZAD ROAD KOCHI, MATTANCHERY, ERNAKULAM DISTRICT STATE OF KERALA - 682 002 PRESENTLY R/AT FLAT NO.1012, 10TH FLOOR LEO BLOCK, BERRYS APARTMENT DERALAKATTE, MANGALURU D.K DISTRICT - 575 018. …PETITIONER (BY SRI. HASHMATH PASHA, SENIOR COUNSEL FOR SRI. KARIAPPA N.A., ADVOCATE) AND: STATE OF KARNATAKA BY KONAJE POLICE STATION, D.K DISTRICT REP. BY SPP, HIGH COURT BUILDING, BANGALORE-560 001. …RESPONDENT (BY SRI. B. LAKSHMAN, HCGP) Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:20170 CRL.P No. 14583 of 2025 THIS CRL.P IS FILED U/S 439 CR.P.C (U/S 483 BNSS) PRAYING TO RELEASE THEM ON BAIL IN CR.NO.103/2025 OF KONAJE P.S., MANGALURU, FOR THE OFFENCES P/U/S 8(c), 22(c), 20(b)(ii)(A) OF NDPS ACT, PENDING ON THE FILE OF PRINCIPAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL ORAL ORDER This petition is by the accused in Crime No.103/2025, registered at Konaje Police Station, Mangalore South Sub- Division, Mangalore for the offences punishable under Section 8(c), 22(c) and Section 20(b)(ii)(A) of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act for short) seeking his release on bail. 2. Charge sheet has been filed after the investigation. 3. Perusal of column No. 17 of the charge sheet would indicate that on 29.08.2025 at about 09.50 a.m. CW1 had received definite information regarding sale of contraband substance on the way towards Ajjanakatte, near pizza ground, opposite to a K.S.Hegde Hospital of Deralakatte, Belma Village, - 3 - HC-KAR NC: 2026:KHC:20170 CRL.P No. 14583 of 2025 Ullal Taluk within the jurisdiction of Konaje Police Station. Thereupon CW1 with the purported authorisation by his higher- ups along with CW2, CW3, CW4 to CW9 went to the spot and apprehended the accused/petitioner who without any permission/license was in possession of contraband substance namely 53.29 grams of methamphetamine, 2.33 grams of Cannabis (Ganja) and 0.45 grams of MDMA pills which were recovered and the same were sent for chemical test. That a report in this regard has also been received, in terms of which, sample found at Article No.4 has been found have responded in positive to methamphetamine. Sample found in Article No.5 has responded in positive for Cannabis (Ganja). Sample found in Article No.6 has responded in positive for MDMA. It is further stated that accused/petitioner has consumed the said substance. Accordingly, charge sheet has been filed. Accused/ petitioner has been in confinement from 29.08.2025. 4. Learned senior counsel appearing for the accused/petitioner taking this Court through the records, more particularly, the preliminary report submitted by CW1 to the Station House officer of Konaje Police Station, points out that; - 4 - HC-KAR NC: 2026:KHC:20170 CRL.P No. 14583 of 2025 4.1. there is complete non-compliance with the mandatory requirements of the provisions of Section 42 of NDPS Act. That one Sri.Sudeep M.V who is the Police Sub-Inspector, CCB Unit of Mangalore City had apparently soon after receipt of the information at about 8:00 a.m. on 29.08.2025 without reducing the said information into writing has directly gone to the spot, conducted search, seized the contraband substance in possession of the accused/petitioner. 4.2. That there is no compliance of Section 50 of the Act either, inasmuch as the alleged substance found in the possession of the accused-petitioner were purportedly sent for chemical test only on 15.09.2025 which is about 17 days after alleged recovery from the accused/petitioner, which runs contrary to the manual instructions which warrants sending of such substance for chemical test within 72 hours of seizure. 4.3. Referring to chemical test report found at page 80 of the documents enclosed to charge sheet, he submits that the report indicate only with regard to qualitative test analysis and not the quantitative test analysis. That the commercial quantity of the substance is above 50 grams. Whereas the substance - 5 - HC-KAR NC: 2026:KHC:20170 CRL.P No. 14583 of 2025 allegedly found as per the complaint in the charge sheet is 53.29 grams which is slightly above the commercial quantity. Further the said report also does not contain the method adopted to arrive at the conclusion. 4.4. He relies upon the judgment of the Constitutional Bench of the Apex Court in the case of KARNAIL SINGH VS. STATE OF HARYANA reported in (2009) 8 SCC 539 and in the case of SARIJA BANU ALIAS JANARTHANI ALIAS JANANI AND ANOTHER VS. STATE THROUGH INSPECTOR OF POLICE reported in (2004) 12 SCC 266 on the point of statutory requirement of writing down and conveying information to superior officer prior to entry, search and seizure as well as on the point of mandatory compliance with Section 42 of the Act respectively. 4.5. As regards the clarity on the commercial quantity of the seized material, he relies upon the judgement of Apex Court in the case of BHARAT CHAUDHARY VS. UNION OF INDIA reported in (2021) 20 SCC 50. - 6 - HC-KAR NC: 2026:KHC:20170 CRL.P No. 14583 of 2025 4.6. He further submits that the accused/petitioner is a qualified dentist, practicing at Mangaluru, coming from the family of doctors, namely his mother and sister. That he has been falsely implicated. 4.7. He also submits on instructions that the accused/petitioner was allegedly picked up by the respondent- police two days prior to the date of alleged incident. Therefore, he submits that there is every likelihood of petitioner being framed into false accusation. Hence seeks for allowing of the petition. 5. Learned HCGP on the other hand opposing the petition submits that the petitioner has been found to be in possession of the contraband substance of commercial quantity. Test report revealed the quality of the substance found in his possession. He submits even if there are any procedural lapses, considering the seriousness of the allegation and also the fact the petitioner hailing from neighbouring State- Kerala would not be available for conducting of trial. Therefore, he seeks for rejection of the application. - 7 - HC-KAR NC: 2026:KHC:20170 CRL.P No. 14583 of 2025 6. Though learned HCGP had opposed stating that the accused/petitioner hails from Kerala, learned Senior Counsel submits that he is practising in Mangalore. 7. Heard. Perused the records. 8. Facts narrated above do not require any repetition. Constitution Bench of Apex Court in the case of KARNAIL SINGH (supra) dealing with compliance with statutory requirement under Section 42(1) and (2) of the Act, at para 35 has concluded as under; "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 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 - 8 - HC-KAR NC: 2026:KHC:20170 CRL.P No. 14583 of 2025 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 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 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." 9. The preliminary report/communication dated 29.08.2025 forwarded by CW1-Sandeep M.V. to the Station House Officer Konaje, as well as column 17 of the charge sheet, do not indicate the said officer reducing the information into writing - 9 - HC-KAR NC: 2026:KHC:20170 CRL.P No. 14583 of 2025 and proceeding thereafter. That it is not the case of the prosecution that the officer concerned was on the move. But it is a definite case of he being in the station and it is only thereafter he has gathered his team and gone to the spot. Clearly, there appears to be non-compliance with the requirement of sub-section (1) of Section 42 of the Act. There is also no whisper about any such compliance being made after the completion of process of search and seizure either. 10. As regards the quantity of the substance recovered is concerned, the complaint and the charge sheet indicate recovery of 53.29 grams of MDMA substance, 2.83 grams of hydro weed and 0.45 grams of MDMA pills which was as per the measurement carried out by the CW.1 and his team. This Unit of measurement are missing in the chemical test report dated 30.10.2025 which finds part of the charge sheet. As rightly pointed by learned Senior Counsel for the accused/petitioner, the said report only refers to qualitative test and not the quantitative test, which is another essential requirement to find out if the contraband substance carried was above or below the - 10 - HC-KAR NC: 2026:KHC:20170 CRL.P No. 14583 of 2025 commercial quantity. It is submitted, commercial quantity of this substance is 50 grams and above. 11. Constitution Bench of Apex Court in the case of BHARAT CHAUDHAR (supra) at paragraphs 12 and 13 has held as under; "12. After carefully examining the arguments advanced by the learned counsel for the parties and having cursorily glanced at the records, we are of the opinion that the impugned order [Union of India v. Bharat Chaudhary, 2021 SCC OnLine Mad 6554] cancelling the bail granted in favour of Bharat Chaudhary (A-4), is not sustainable in view of the fact that the records sought to be relied upon by the prosecution show that one test report dated 6-12- 2019, two test reports dated 17-12-2019 and one test report dated 21-12-2019 in respect of the sample pills/tablets drawn and sent for testing by the prosecuting agency conclude with a note appended by the Assistant Commercial Examiner at the foot of the reports stating that “quantitative analysis of the samples could not be carried out for want of facilities”. 13. 13. In the absence of any clarity so far on the quantitative analysis of the samples, the prosecution cannot be heard to state at this preliminary stage that the petitioners have been found to be in possession of commercial quantity of psychotropic substances as contemplated under the NDPS Act. Further, a large number of the tablets that have been seized by DRI admittedly contain herbs/medicines meant to enhance male potency and they do not attract the provisions of the NDPS Act. Most importantly, none of the tablets were seized by the prosecution during the course of the search conducted, either at the office or at the residence of A-4 at Jaipur, on 16-3-2020. Reliance on printouts of WhatsApp messages downloaded from the mobile phone and devices seized from the office premises of A-4 cannot be treated at this stage as sufficient material to establish a live link between him and A-1 to A-3, when even as per the prosecution, scientific reports in respect of the said devices is still awaited." - 11 - HC-KAR NC: 2026:KHC:20170 CRL.P No. 14583 of 2025 12. The other ground, pointed out was sending of the substance for chemical test. The report dated 30.10.2025 indicate that the sample articles subject matter of Crime No. 103/2025 of Konaje Police Station were received in the laboratory for examination on 15.09.2025 through one Ramesh B.C. 640 Constable. Whereas the same were purportedly seized from the accused on 29.08.2025. In other words, the same were sent for test after about 17 days of the seizure. There is no dispute of the fact that as per the manual, the sample articles are required to be sent within 72 hours of seizing. 13. For the aforesaid reasons and analysis, this Court is of the view that the accused/petitioner has made out a case for grant of bail for non-compliance of the requirement of Section 42 of the Act and lack of quantitative material made available. 14. Accordingly, the following; ORDER (i) Criminal Petition is allowed. - 12 - HC-KAR NC: 2026:KHC:20170 CRL.P No. 14583 of 2025 (ii) The accused/petitioner is directed to be enlarged on bail in Crime No.103/2025 for the offences punishable under Sections 8(c), 22(c) and Section 20(b)(ii)(A) of Narcotic Drugs and Psychotropic Substances Act, 1985, subject to the following conditions: a) the accused/petitioner shall execute personal bond for a sum of Rs.1,00,000/- with two local sureties for the likesum, to the satisfaction of the jurisdictional Court; b) The accused/petitioner shall appear regularly on all the dates of hearing before the Trial Court unless the Trial Court exempts his appearance for valid reasons; c) The accused/petitioner shall not directly or indirectly threaten or tamper with the prosecution witnesses; d) The accused/petitioner shall not involve in similar offences in future; e) The accused/petitioner shall not leave the jurisdiction of the Trial Court without permission of the said Court until the case registered against him is disposed off. - 13 - HC-KAR NC: 2026:KHC:20170 CRL.P No. 14583 of 2025 f) Communicate copy of this order to the trial Court and concerned prison authorities forthwith. SD/- (M.G.S. KAMAL) JUDGE RU, List No.: 2 Sl No.: 5