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Rajasthan High Court – Jodhpur
Lalit vs State Of Rajasthan (2025:Rj-Jd:25493) on 23 May, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:25493]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 3rd Bail Application No. 6046/2025
Sundar S/o Khemraj, Aged About 25 Years, R/o Gomana, Police
Station Chhoti Sadri, District Pratapgarh.(Presently Lodged In
District Jail Pratapgarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
Connected With
S.B. Criminal Miscellaneous 4th Bail Application No. 6047/2025
Lalit S/o Ramprasad, Aged About 22 Years, R/o Gomana, Police
Station Chhoti Sadri, District Pratapgarh.(Presently Lodged In
District Jail Pratapgarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp.
----Respondent
For Petitioner(s) : Mr. S.K. Bhati
For Respondent(s) : Mr. Surendra Bishnoi, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
23/05/2025
1. The jurisdiction of this Court has been invoked by way of
filing an applications under Section 483 BNSS at the instance of
accused-petitioners. The requisite details of the matter are
tabulated herein below:
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S.No. Particulars of the Case
1. FIR Number 366/2022
2. Concerned Police Station Chhoti Sadari
3. District Pratapgarh
4. Offences alleged in the FIR Section 8/15 of the NDPS
Act
5. Offences added, if any –
6. Date of passing of impugned 03.04.2025
order
2. The concise facts of the case as alleged in the FIR are that
on 22.11.2022, Incharge of Chotisadari police station Shri
Narendra Singh, while patrolling with his force when reached at a
distance of about 100 meters on the kutcha road from Gomana to
Barkati, where the accused Sundar and Lalit and another Arjun
Singh, armed with guns, were seen hiding behind trees near the
fields. Upon search 15 plastic packets of poppy husk were found
in their possession; a total of 304 kg of illegal poppy husk was
recovered. Action was taken and the accused Sundar and Lalit
were arrested on 22.11.2022 for the offence under Section 8/15
of the NDPS Act. Their earlier bail application was dismissed by
this
Court being SBCRLMB Nos.4867/2025 vide order dated
13.05.2025.
3. It is contended on behalf of the accused-petitioners that no
case for the alleged offences is made out against them and their
incarceration is not warranted. There are no factors at play in the
case at hand that may work against grant of bail to the accused-
petitioners and they have been made an accused based on
conjectures and surmises.
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4. Contrary to the submissions of learned counsel for the
petitioners, learned Public Prosecutor opposes the bail application
and submits that the present case is not fit for enlargement of
accused on bail.
5. Have considered the submissions made by both the parties
and have perused the material available on record.
6. On earlier occasions, the bail application was dismissed by
this Court, while granting liberty to renew the prayer for bail after
the statement of prosecution witness Narayan Singh had been
recorded. Narendra Singh has now been examined in the trial as
PW3. Upon appraisal of his testimony, it is noticed that the
petitioners were not arrested at the spot. Their identification at
the spot is nowhere claimed.
6.1. Shri Narendra Singh, the Seizing Officer, was a Sub-
Inspector of Police posted as In-Charge of the Police Outpost Jagir.
The Station House Officer of the concerned police station at the
relevant time was Inspector Deepak Kumar. In his cross-
examination (at page 5), Narendra Singh admitted that there was
no document on record showing that he held charge of the
concerned police station at the time the search and seizure was
conducted. He further admitted that Ambalal was the In-Charge of
the police station during that period and that no documentation
existed to establish his (Narendra Singh’s) assignment as Station
House Officer.
6.2. As per Standing Order No. 1 of 1986, only Sub-Inspectors
who are officially designated as Station House Officers are
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competent to carry out search and seizure under the NDPS Act.
Not all Sub-Inspectors are authorised to undertake such actions.
Prima facie, there is merit in the argument that the seizure in this
case was made by an unauthorised officer. Additionally, a further
procedural lapse is evident in the fact that the seizure was
effected by Sub-Inspector Narendra Singh, while the investigation
was subsequently conducted by Inspector Deepak Kumar of the
same Police Station. The plea of apparent bias in such
circumstances cannot be disregarded. Furthermore, 880 grams of
weight in the sample at the time it reached the FSL raises further
doubt about the genuineness of the prosecution story. However, it
is clarified that these observations are prima facie in nature and
not conclusive findings. In light of the above facts and legal
inconsistencies, this Court is of the view that Section 37 of the
NDPS Act would not be attracted in the instant case.
7. The NDPS Act is a statute comprising of stringent provisions
which need to be followed in letter and in spirit and non-
compliance of any stipulations specially the ones relating to the
procedure followed during search, seizure and arrest, cannot be
overlooked.
7. While enacting Section 42 of NDPS Act, the legislature put a
complete ban on authorities beyond the ones mentioned in the
Section to carry out the functions under the Act. The legislature
has clearly empowered the persons mentioned therein and it has
also been specified through the notification No. F. 1(3) FD/EX/85-
I, dated 16-10-86 as to who are authorised to do so.
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8. Chapter V of the NDPS Act specifically provides that only the
officers mentioned and empowered therein can give an
authorisation to a subordinate to arrest and search if such officer
has reason to believe about the commission of an offence and
after reducing the information, if any, into writing. As per Section
42, only officers mentioned therein and so empowered can make
the arrest or search as provided if they have reason to believe
from personal knowledge or information. The specific rank of the
officer and ‘reason to believe’ are two important requirements that
are needed to be complied with necessarily. Firstly, the Magistrate
or the Officers mentioned therein are empowered and secondly,
they must have reason to believe that an offence under Chapter
IV has been committed or that such arrest or search was
necessary for other purposes mentioned in the Act. So far as the
first requirement is concerned, it can be seen that the legislature
intended that only certain Magistrates and certain Officers of
higher rank are empowered and can act to effect the arrest or
search.
9. The notification No. F. 1(3) FD/EX/85-I, dated 16-10-86,
published in Rajasthan Gazette Part IV-C (II) dated 16-10-86 on
page 269 reads as:-
S.O. 115.- In exercise of the powers conferred by
section 42 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (Act No 61 of 1985) the State
Government hereby authorise all Inspectors of Police,
and Sub-Inspectors of Police, posted as Station
House Officers, to exercise the powers mentioned in
Section 42 of the said Act with immediate effect:
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Provided that, when power is exercised by Police
Officer other than Police Inspector of the are a
concerned such officer shall immediately hand over
the person arrested and articles seized to the
concerned Police Inspectors or S.H.O. of the Police
Station concerned.
10. Hon’ble the Supreme Court passed a landmark judgment in
the case of Roy V.D. Vs. State of Kerala reported in AIR 2001
SC 137 wherein, in a similar situation, it was observed as under:-
16. Now, it is plain that no officer other than an
empowered officer can resort to Section 41(2) or exercise
powers under Section 42(1) of the Narcotic Drugs &
Psychotropic Substances Act or make a complaint under
Clause (d) of Sub-section (1) of Section 36A of the
Narcotic Drugs & Psychotropic Substances Act. If follows
that any collection of material, detention or arrest of a
person or search of a building or conveyance or seizure
effected by an officer not being an empowered officer or
an authorised officer under Section 41(2) of the Narcotic
Drugs & Psychotropic Substances Act, lacks sanction of
law and is inherently illegal and as such the same cannot
form the basis of a proceeding in respect of offences
under Chapter IV of the Narcotic Drugs &Psychotropic
Substances Act and use of such a material by the
prosecution vitiates the trial.
18. It is well settled that the power under Section
482 of the Cr.P.C. has to be exercised by the High
Court, inter alia, to prevent the abuse of the process
of any court or otherwise to secure the ends of
justice. Where criminal proceedings are initiated
based on illicit material collected on search and arrest
which are per se illegal and vitiate not only a
conviction and sentence bases on such material butal
so the trial itself, the proceedings cannot be allowed
to go on as it cannot but amount to abuse of the
process of the court; in such a case not quashing the(Downloaded on 28/05/2025 at 09:33:58 PM)
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of the court resulting in great hardship and injustice
to the accused. In our opinion, exercise of power
under Section 482 of the Cr. P.C. to quash
proceedings in a case like the one on hand, would
indeed secure the ends of justice.
11. In light of the judgments cited above, the notification
passed by the State government in this regard as well as the
provision contained in Section 42 of the NDPS Act, this Court is of
the view that the non-compliance of mandatory provisions of the
NDPS Act has to be dealt with a strict hand and it is imperative
upon the courts to be cautious while adjudicating such matters
where seizure is concerned under the NDPS Act as no accused
should be able to walk scot-free for want of proper
implementation and following of the procedure established by
law.
12. It is nigh well settled law that at a pre-conviction stage; bail
is a rule and denial from the same should be an exception. The
purpose behind keeping an accused behind the bars during trial
would be to secure his presence on the day of conviction so that
he may receive the sentence as would be awarded to them.
Otherwise, it is the rule of Crimnal Jurisprudence that he shall be
presumed innocent until the guilt is proved.
13. Accordingly, the instant bail application(s) under Section 439
Cr.P.C. is allowed and it is ordered that the accused-petitioners as
named in the cause title shall be enlarged on bail provided each of
them furnishes a personal bond in the sum of Rs.50,000/- with
two sureties of Rs.25,000/- each to the satisfaction of the learned
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trial Judge for their appearance before the court concerned on all
the dates of hearing as and when called upon to do so.
(FARJAND ALI),J
28-Mamta/-
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