Rajasthan High Court – Jodhpur
Kanhaiya Lal Keer vs State Of Rajasthan (2025:Rj-Jd:29008) on 4 July, 2025
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2025:RJ-JD:29008]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 3rd Bail Application No. 5817/2025
Kanhaiya Lal Keer S/o Heera Lal Keer, Aged About 30 Years, R/o
Ramnagar Debipura Vpo Barundani Police 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. Sri Ram Choudhary, PP
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order
04/07/2025
This third application for bail under Section 439 Cr.P.C. (483
BNSS) has been filed by the petitioner who has been arrested in
connection with F.I.R. No.697/2022, registered at Police Station
Sangriya, District Hanumangarh, for the offences punishable
under Sections 8/15 of NDPS.
Learned counsel for the petitioner submitted that the co-
accused Mangi Lal Keer (S.B. Criminal Misc. Bail Application
No.7063/2025) has already been enlarged on bail by the co-
ordinate Bench of this Court vide order dated 16.06.2025. Learned
counsel for the petitioner further submitted that the case of the
present petitioner is not at all distinguishable from that of the
above named co-accused person who has already been enlarged
on bail.
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Lastly, learned counsel for the petitioner submitted that the
petitioner is in judicial custody; the petitioner does not have any
criminal antecedents; till date, out of 24 cited prosecution
witnesses, statements of only 5 witnesses have been recorded
before the competent criminal Court and the trial of the case will
take sufficiently long time, therefore, the benefit of bail may be
granted to the accused-petitioner.
Per contra, learned Public Prosecutor has vehemently
opposed the bail application. Learned Public Prosecutor submitted
that in the present case, higher quantity of contraband (poppy
husk/ straw) was recovered from the conscious possession of the
present petitioner and, therefore looking at the seriousness of the
allegations against the present petitioner, he does not deserves to
be enlarged on bail by this Court. However, he was not in a
position to refute the fact that the above named co-accused
person has already been enlarged on bail.
Heard learned counsel for the parties at Bar. Perused the
material available on record.
The order dated 16.06.2025 passed by the co-ordinate
Bench of this Court while enlarging co-accused Mangi Lal Keer on
bail is reproduced herein below for ready reference:-
“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 (Downloaded on 04/07/2025 at 10:49:28 PM) [2025:RJ-JD:29008] (3 of 6) [CRLMB-5817/2025] 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, 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 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 after reducing the information,
if any, into writing. As per Section 42, only officers mentioned therein(Downloaded on 04/07/2025 at 10:49:28 PM)
[2025:RJ-JD:29008] (4 of 6) [CRLMB-5817/2025]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.
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(Downloaded on 04/07/2025 at 10:49:28 PM)
[2025:RJ-JD:29008] (5 of 6) [CRLMB-5817/2025]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.
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 Judge for his appearance before
the court concerned on all the dates of hearing as and when called upon
to do so.”
Having considered the rival submissions, facts and
circumstances of the case, without expressing any opinion on
merits/demerits of the case, this Court is inclined to enlarge the
petitioner on bail.
Consequently, the third bail application under Section 439
Cr.P.C. (483 BNSS) is allowed. It is ordered that the accused-
petitioner- Kanhaiya Lal Keer S/o Heera Lal Keer, arrested in
connection with F.I.R. No.697/2022, registered at Police Station
Sangriya, District Hanumangarh, shall be released on bail, if not
wanted in any other case, provided he furnishes a personal bond
of Rs.1,00,000/- and two sureties of Rs.50,000/- each, to the
satisfaction of learned trial Court, for his appearance before that
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Court on each & every date of hearing and whenever called upon
to do so till completion of the trial.
It is however, made clear that findings recorded/observations
made above are for limited purposes of adjudication of bail
application. The trial court shall not get prejudiced by the same.
(KULDEEP MATHUR),J
232-himanshu/-
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