Rajasthan High Court – Jodhpur
Mundara @ Ranjeet vs State Of Rajasthan (2025:Rj-Jd:6173) on 30 January, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:6173]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 1351/2025
Mundara @ Ranjeet S/o Goma Banjara, Aged About 34 Years, R/
o Ratanpuriya, P.s. Javad, Dist. Neemuch, Mp (Lodged In Dist.
Jail, Chittorgarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. B.R. Bishnoi
For Respondent(s) : Mr. Vikram Rajpurohit, Dy.G.A.
HON'BLE MR. JUSTICE FARJAND ALI
Order
30/01/2025
1. The jurisdiction of this Court has been invoked by way of
filing an application under Section 439 Cr.P.C. 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 612/2022 2. Concerned Police Station Nimbahera 3. District Chittorgarh 4. Offences alleged in the FIR Under Sections 8/15 & 8/29 of the NDPS Act 5. Offences added, if any -- 6. Date of passing of impugned 28.01.2025 order
2. 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
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accused-petitioner and he has been made an accused based
on conjectures and surmises.
3. 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.
4. Keeping trust upon the words of learned counsel for the
petitioner Shri B.R. Bishnoi, to the effect that the petitioner
has surrendered and has been taken into custody, the bail
application is entertained.
5. I Have considered the submissions made by both the parties
and have perused the material available on record.
6. The petitioner has been impleaded in this case on the basis of
statement of co-accused Gopal S/o Heera Lal Chandel
Banjara, who has already been enlarged on bail by this Court
vide order dated 20.03.2024. The relevant portion of the said
bail is reproduced hereinbelow:-
6. It is the case of the prosecution that on 28.10.2022,
the Sub-Inspector Ashwini Kumar during ‘nakabandi’
stopped a Motorcycle upon which one person fled away
from the spot and the petitioner got apprehended. The
prosecution claims that the petitioner was having a nexus
with Container which was coming on the same road
behind them. The time gap of interval between the
petitioner’s Motcorcycle and coming of the container at
the spot subsequently is not reflecting from the record.
Actually, it is not comprehensible that how much time
after apprehension of the petitioner, the another vehicle
(Container) came at the spot. A total weight of 20
Quintals 2Kg 100 gms poppy husk came to be recovered
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from the container which was carrying by accused Karan
S/o Laxman Singh. Admittedly, nothing incriminating
came to be recovered from the petitioner. No nexus
could have been established between the petitioner and
the driver of the container from which the contraband got
recovered. Besides the above, it is noticed that there is a
total non-compliance of Section 42 of the NDPS Act. The
recovery was made after Sunset and before the sunrise.
No warrant or report is there on record to this effect. As
per the S.O. issued by the Government Of India in the
Year 1986, the Sub-Inspectors of police, who are posted
as SHO only are authorized to make search and seizure
under the NDPS Act. Admittedly, at the relevant point of
time, Police Inspector Phool Chand was a posted SHO of
the Police Station Nimbhera, District Chittorgarh and the
Sub-Inspector Ashwini Kumar was under his
subordination. The police station was around 5 Kms.
away from the spot and the office of the Dy.S.P., called
as Circle Officer, is not far than 1½ Kms to the police
station, however, no endeavor was made to call the
senior police officer(s) before making search and seizure
of the contraband and the search was affected without
obtaining due warrant. There is nothing on record to
show or suggest that the Sub-Inspector Ashwini Kumar
was given charge of the police station at that particular
day and time.
7. A copy of daily ‘Roznamcha’ of the concerned police
station is placed on record for perusal of the Court. On
perusal of the same, the entries with regard to police
activities during the intervening night of 27th/28th
October 2022 were examined but nowhere from it is
reflecting that either the Superintendent of Police or any
other person had given the charge of the police station
Nimbahera to the Sub-Inspector Ashwini Kumar so as to
enable him to make search and seizure under the NDPS
Act. Compliance of Section 42 is required to be done
mandatorily. Admittedly, no notice under Section 50 of
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the NDPS Act was given to the petitioner which was
otherwise mandatory to be given before making search.
In this regard, Honb’le the Supreme has passed a
judgment in the case of Vijaysinh Chandubha Jadeja
Vs. State of Gujarat reported in AIR 2011 SC 77. This
court has also passed a detailed order dated 09.11.2023
in this regard in S.B. Criminal Misc. II Bail Application No.
3678/2023 titled Satyanarayan @ Sattu S/o Jeetmal
Jat Vs. State of Rajasthan; the relevant portion of the
order is reproduced as under:-
“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.
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(Downloaded on 01/02/2025 at 12:03:54 AM)
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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 accused. In our opinion, exercise of power
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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. This Court though is not deciding the
legal issue finally with regard to compliance or non-
compliance of Section 42 of the NDPS Act as doing so
would mean influencing the trial Court but could not
desist itself from granting bail to the petitioner
particularly on the ground that he was not sitting in the
vehicle wherefrom recovery of contraband has been
affected. Even the prosecution has not been
satisfactorily convinced any nexus between him and the
driver of the container.
10. Moving on to the impediments contained under
Section 37 of the NDPS Act, it is considered relevant to
refer to the recent ruling passed by Hon’ble the Supreme
Court in Mohd Muslim @ Hussain V. State (NCT OF
DELHI)1 wherein while discussing the parameters of
Section 37 of the NDPS Act, it was held that the provision
cannot be construed in a manner that would render the
grant of bail impossible. The accused-appellant in the
aforementioned case was directed to be enlarged on bail
looking to the long period of incarceration. The
paragraphs of Mohd. Muslim @ Hussain (supra) relevant
to the present matter are reproduced below:
“18. The conditions which courts have to be cognizant of
are that there are reasonable grounds for believing that the accused
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any offence while on bail. What is meant by “not guilty” when all
the evidence is not before the court? It can only be a prima facie
determination. That places the court’s discretion within a very
narrow margin. Given the mandate of the general law on bails
(Sections 436, 1 Special Leave Petition (CRL.) NO(S). 915 of 2023,
decided on 28.03.2023. 437 and 439, CrPC) which classify
offences based on their gravity, and instruct that certain serious
crimes have to be dealt with differently while considering bail
applications, the additional condition that the court should be
satisfied that the accused (who is in law presumed to be innocent)
is not guilty, has to be interpreted reasonably. Further the
classification of offences under Special Acts (NDPS Act, etc.),
which apply over and above the ordinary bail conditions required
to be assessed by courts, require that the court records its
satisfaction that the accused might not be guilty of the offence and
that upon release, they are not likely to commit any offence. These
two conditions have the effect of overshadowing other conditions.
In cases where bail is sought, the court assesses the material on
record such as the nature of the offence, likelihood of the accused
co-operating with the investigation, not fleeing from justice: even
in serious offences like murder, kidnapping, rape, etc. On the other
hand, the court in these cases under such special Acts, have to
address itself principally on two facts: likely guilt of the accused
and the likelihood of them not committing any offence upon release.
This court has generally upheld such conditions on the ground that
liberty of such citizens have to – in cases when accused of offences
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interest.
19. A plain and literal interpretation of the conditions under
Section 37 (i.e., that Court should be satisfied that the accused is
not guilty and would not commit any offence) would effectively
exclude grant of bail altogether, resulting in punitive detention and
unsanctioned preventive detention as well. Therefore, the only
manner in which such special conditions as enacted under Section
37 can be considered within constitutional parameters is where the
court is reasonably satisfied on a prima facie look at the material
on record (whenever the bail application is made) that the accused
is not guilty. Any other interpretation, would result in complete
denial of the bail to a person accused of offences such as those
enacted under Section 37 of the NDPS Act.”
(Emphasis Supplied)
7. In Rabi Prakash Vs. State of Odisha passed in
Special leave to Appeal (Crl.) No.(s) 4169/2023, Hon’ble
the Apex Court has again passed an order dated 13th
July, 2023 dealing this issue and has held that the
provisional liberty(bail) overrides the prescribed
impediment in the statute under Section 37 of the NDPS
Act as liberty directly hits one of the most precious
fundamental rights envisaged in the Constitution, that is,
the right to life and personal liberty contained in Article
21.
12. At the stage of hearing of a bail plea pending trial,
although this Court is not supposed to make any definite
opinion or observation with regard to the discrepancy
and legal defect appearing in the case of prosecution as
the same may put a serious dent on the State‘s case yet
at the same time, this Court can not shut its eye towards
the non-compliance of the mandatory provision, more
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than one and half years of incarceration pending trial,
failure of compliance with the procedure of sampling and
seizure and the serious issue of competence of seizure
officer. In the case of Mohd. Muslim @ Hussain Vs.
State (NCT of Delhi) passed by Hon’ble the Supreme
Court in Special Leave Petition (Crl.) No.915 of 2023 vide
order dated 28.03.2023, it has been propounded that at
the stage of hearing a bail application under Section 439
Cr.P.C., although it is not possible to make a definite
opinion that he is not guilty of the alleged crime but for
the limited purpose for the justifiable disposal of the bail
application, a tentative opinion can be formed that the
material brought on record is not sufficient enough to
attract the embargo contained under Section 37 of the
NDPS Act. Though specific arguments have not been
conveyed but looking to the fact that the accused is in
custody, this court feels that the accused is not supposed
to establish a case in support of his innocence rather his
detention is required to be justified at the instance of the
prosecution, therefore, this court went deep into the
facts of the case and the manner in which the entire
proceedings have been undertaken. If other surrounding
factors align in consonance with the statutory
stipulations, the personal liberty of an individual can not
encroached upon by keeping him behind the bars for an
indefinite period of time pending trial. In view of the
above, it is deemed suitable to grant the benefit of bail to
the petitioner in the present matter. Needless to say,
none of the observations made herein under shall affect
the rights of either of the parties during trial and this
Court refrains from commenting on the niceties of the
matter.
7. In view of the above and on the ground of parity as well as
considering the fact that there is high probability that the trial
may take long time to conclude, it is deemed suitable to
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grant the benefit of bail to the petitioner in the present
matter.
8. Accordingly, the instant bail application under Section 439
Cr.P.C. 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.
(FARJAND ALI),J
257-Samvedana/-
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