Rajasthan High Court – Jodhpur
Mangi Lal Keer vs State Of Rajasthan (2025:Rj-Jd:27252) on 16 June, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:27252]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 7063/2025
Mangi Lal Keer S/o Nand Lal Keer @ Nandakeer, Aged About 32
Years, R/o Ramnagar Debipura Vpo Barundani, Ps Bigod Tehsil
Mandalgarh District Bhilwara. (At Present Lodged In Sub Jail
Sangaria)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Kailash Khilery
For Respondent(s) : Mr. Surendra Bishnoi, AGA
Mr. K.S. Champawat
HON'BLE MR. JUSTICE FARJAND ALI
Order
16/06/2025
1. The jurisdiction of this court has been invoked by way of
filing the instant bail application under Section 439 CrPC at the
instance of accused-petitioner. The requisite details of the matter
are tabulated herein below:
S.No. Particulars of the Case 1. FIR Number 697/2022 2. Concerned Police Station Sangariya 3. District Hanumangarh 4. Offences alleged in the FIR Section 8/15 of the NDPS Act 5. Offences added, if any - 6. Date of passing of impugned 27.05.2025 order
2. The concise facts of the case as alleged in the FIR are that
on 26.11.2022, Shri Shailesh Chandra, SI, SHO Sangariya,
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Hanumangarh intercepted a Truck being driven by the petitioner
and during search, 822 Kg poppy husk got recovered from the
said vehicle. After search and seizure, an FIR got registered and
petitioner was arrested and since then he is behind the bars.
Now, around two years have lapsed, hence, the instant bail
application.
3. It is contended on behalf of the accused-petitioner that no
case for the alleged offences is made out against him and his
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-
petitioner and he has been made an accused based on conjectures
and surmises.
4. Contrary to the submissions of learned counsel for the
petitioner, learned Public Prosecutor opposes the bail application
and submits that the present case is not fit for enlargement of
accused on bail.
5. Heard and considered the submissions made by both the
parties and have perused the material available on record.
6. Perusal of the record revealing that the petitioner has been
arrested on 26.11.2022 in connection with recovery of 822 Kg
Poppy husk. The Seizure was effected by Sub-Inspector Shailesh
Chandra and he admitted in his cross examination that there is
no entry in the case file which pertains to any report in the
Roznamcha (Daily Diary) made by him in the capacity of SHO,
Police Station Sangaria. As per Notification No.1/86, only those
Sub-Inspectors are competent to effect search and seizure of the
contraband who are the posted SHO. Furthermore, it is revealing
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from the record that till date out of total 24 projected witnesses,
statements of only 5 witnesses have been recorded in the trial.
6.1. As per Standing Order No. 1 of 1986, only Sub-Inspectors
who are officially designated as Station House Officers are
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 as there was no
document on record showing that the officer concerned held
charge of the concerned police station at the time the search and
seizure was conducted. 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.
6.3. 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.
6.4. 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.
6.5. 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
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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.
7. 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:
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.
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8. 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
proceedings would perpetuate abuse of the process
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.
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9. 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.
11. 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.
12. Considering the overall facts and circumstances of the case
and the fact that petitioner is behind the bars for around two and
half years thus, looking to the fact that there is high probability
that the trial may take long time to conclude, it is deemed suitable
to grant the benefit of bail to the petitioner.
13. Accordingly, the instant bail application under Section 483
BNSS is allowed and it is ordered that the accused-petitioner as
named in the cause title shall be enlarged on bail provided he
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 trial
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Judge for his appearance before the court concerned on all the
dates of hearing as and when called upon to do so.
(FARJAND ALI),J
160-Mamta/-
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