Rajasthan High Court – Jodhpur
Nand Kishore vs Union Of India (2025:Rj-Jd:3777) on 21 January, 2025
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2025:RJ-JD:3777]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 13373/2024
Nand Kishore S/o Shri Meghraj, Aged About 50 Years, R/o
Karunda, P.S. Chhoti Sadari, Dist Pratapgarh. (At present lodged
in District Jail Pratapgarh)
----Petitioner
Versus
Union Of India, CBN
----Respondent
Connected With
S.B. Criminal Miscellaneous Bail Application No. 13374/2024
Bhajjan Lal S/o Babu Lal, Aged About 30 Years, R/o Khokhariya,
P.S Kaparda, Dist. Jodhpur (Lodged in District Jail Pratapgarh)
----Petitioner
Versus
CBN, CBN
----Respondent
For Petitioner(s) : Mr. Anand Purohit, Sr. Adv. assisted
by Mr. Kailash Chandra Bishnoi
Mr. Vijay Raj Bishnoi
For Respondent(s) : Mr. K.S. Nahar, Spl. PP with
Mr. Gopal Singh
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order
21/01/2025
1. These applications for bail under Section 483 of BNSS have
been filed by the petitioners who have been arrested in connection
with F.I.R. No.02/2024 registered at Police Station CBN Kota, District
Kota for the offence under Section 8/15 & 29 of the NDPS Act.
2. Heard learned counsel for the petitioners and the learned Public
Prosecutor. Perused the material available on record.
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3. Learned counsel for the petitioners submitted that in the
present case the entire search and seizure proceedings were
conducted in utter violation of the provisions contained in Section
42(1) and (2) of the NDPS Act. Learned counsel further submitted
that the co-accused Jagdish (S.B. Criminal Miscellaneous Bail
Application No.10225/2024) has already been enlarged on bail by
the co-ordinate Bench of this Court vide order dated 28.08.2024
solely on the ground of non-compliance of the provisions contained in
Section 42(1) and (2) of the NDPS Act. Learned counsel submitted
that since the co-accused Jagdish has been enlarged on bail on the
ground of non-compliance of the mandatory procedure of search and
seizure, the present petitioners also deserve to be enlarged on bail
as the case of the present petitioners is not distinguishable from that
of the above named co-accused.
4. Learned counsel for the petitioners submitted that the
petitioners are in judicial custody and the trial of the case will take
sufficiently long time, therefore, the benefit of bail may be granted
to the accused-petitioners.
5. Per contra, learned Special Public Prosecutor for the respondent
CBN, Sh. K.S. Nahar has opposed the bail applications. However, he
was not in a position to refute the fact that the above named co-
accused has already been enlarged on bail by a co-ordinate Bench of
this Court.
6. Heard learned counsel for the parties at Bar and perused the
order dated 28.08.2024 passed by the co-ordinate Bench of this
Court. The order dated 28.08.2024 is reproduced hereinbelow for
ready reference:-
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“1. The prayer made in this bail petition filed under
section 483 of the BNSS (Section 439 of the old
Code) is for grant of bail in respect of offence(s)
punishable under Section(s) 8/15, 29 of the Narcotic
Drugs and Psychotropic Substances Act, 1985.
2. To begin at the beginning learned counsel
representing petitioner has strongly argued that
search and seizure was conducted between sunset
and sunrise without complying with the provisions of
Section 42(1) and (2) of the NDPS Act. There is non-
compliance of mandatory procedure of seizure and
sample, which prima facie renders the seizure illegal.
Another important argument contended is that the
petitioner is a heart patient who has been undergoing
treatment for a long time, prior to arrest. Even while
in custody, his treatment for heart disease is
ongoing. Inviting the Court’s attention to his medical
record, it has been argued that there is no possibility
of receiving adequate and proper treatment in jail.
With the aforesaid submissions, it was prayed that
the present petition be allowed and petitioner may be
enlarged on bail. Learned counsel for the petitioner
fortified the above made submissions by placing
reliance on the following judgments: –
(I) Smt. Najmunisha Vs. The State of Gujarat
And Ors. (2024) 4 SCR 442
(ii) Chhunna @ Mehtab Vs. State of M.P. 2003
SCC (Cri) 1194
(iii) Vijay Kumar VS Narendra & Ors. 2003
SCC (Cri) 1195
(iv) Kewal Singh Rajput Vs. State of Rajasthan
(2017) 2 Cri.L.R. 556
(v) Man Bhadur Vs. State of Goa 1996 Cri.L.R.
1389
(vi) State of Rajasthan Vs. Jag Raj Singh @
Hansa AIR 2016 Supreme Court 3041
(vii) Gangaram Rama Gundkar & Anr. Vs.
State of Maharashtra 2002 ALLMr (CRI) 1356
(viii) Vijaysinh Chandubha Jadeja Vs. State of
Gujarat 2010 AIR SCW 6843
(ix) Mahammed Khalid & Anr. Vs. The State of
Telangana 2024(1) Crimes 204 (SC)
(x) Surinder Kumar Khanna Vs. Intelligence
Officer, Director of Revenue Intelligence 2018
(3) CCSC 1404 (SC)
(xi) Mohammed Fasrin Vs. State, represented
by Intelligence Officer 2020 (1) CCSC 257
(SC)
(xii) Kanhaiyalal Vs. Union of India AIR 2008
SC 1044
(xiii) Kumar @ Ranjithkumar Vs. State 2019
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3. Learned Public Prosecutor has submitted reply
to the petition and denied all the averments made
therein. He opposed release of
the petitioner on bail on the ground that 138.100
Kgs. of contraband poppy straw recovered from the
applicant falls within the ambit of commercial
quantity and the bar as contained in Section 37 of
the NDPS Act is attracted. Contraband was also
recovered from the possession of other persons at
the same spot. At the time of seizure, the
superintendent of the department was present on
the spot as a member of the seizure team. The
seizure action was taken under his instructions
therefore, there was no need for the seizure officer
Himanshu Shekhawat to obtain written
authorization. He submits that seizure was is in
consonance with the procedure and the
discrepancies pointed out by the learned counsel for
the petitioner cannot be considered at this stage and
ought to be determined only after trial; that
investigating officer had collected overwhelming
evidence in the case which would prima-facie point
towards the guilt of the accused; that keeping in
view the gravity of offence petitioner deserve any
leniency rather he needs to be dealt with severely.
He thus, craves rejection of the petitioner’s bail
application.
4. This Court has carefully perused the record as
well as considered the submissions made by learned
counsels for the parties.
5. A perusal of the evidence available on record
would prima facie show that in the present case,
admittedly search and seizure action were taken at
11:00 PM i.e. between sunset and sunrise, by a sub-
inspector who was not a gazetted officer. Due to the
search and seizure being conducted at night,
exception to sub-section 1 of Section 42 of NDPS
Act, as well as sub-section 2 of Section 42 comes
into play.
6. The material available on record reveals that
above provision has not been followed in the case.
The secret information from the informer was
received by the Bureau’s office in Kota at 4:00 pm
on 16.01 2024. In such a situation, a search warrant
could have been obtained immediately from the
magistrate working in Kota or authorization from the
competent officers of the Bureau. If the officer
conducting the seizure believed that during the time
of undertaking this action, the accused might flee or
destroy the evidence then according to the
provisions of the Act, it was necessary for him to
record in writing the reasons for his belief. However,
these reasons were not recorded by him, which is
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prima facie a violation of the required legal
procedure.
7. Argument of learned counsel for the
prosecution that the Superintendent of the
Department, who was a gazetted officer, was
present with the seizure team at the time of seizure,
hence it was not necessary for seizure officer Sub
Inspector Himanshu Shekhawat to obtain written
authorization, is not tenable. In considered opinion
of the Court, for a seizure of contraband in the night
by an officer in the rank of sub inspector to be
lawful, it is essential that legal requirement of
obtaining written authorization or recording of
reason of belief is strictly adhered to. The presence
of Superintendent does not override the necessity
for formal documentation. The failure to obtain such
written authorization or recording of reason of belief,
prima facie makes the seizure not according to law,
as it does not comply with the established legal
procedures indicating a serious procedural flaw.
8. When Himanshu Shekhawat, the sub inspector
of CBN undertakes the action of seizing a
contraband, legal and procedural protocols must be
meticulously followed to ensure that the seizure is
lawful. The law typically mandates certain powers to
certain officers. Seizure of contraband by non-
gazetted officers can only be exercised when they
have explicit written authorization. This requirement
ensures that the seizure officer is acting within the
scope of their legal powers. Without authorization,
the authority of the seizure officer to conduct the
seizure could be questioned. Even though the
superintendent was physically present at the time of
the seizure but his presence does not substitute for
the need for written authorization as verbal consent
or mere presence does not satisfy legal standards.
By bypassing the requirement for written
authorization, the seizure officer, even if acting
under the superintendent’s verbal directive, has
prima facie contravened established legal
procedures. In that view of the matter, the petitioner
has available himself a substantial ground so as to
challenge the case of the prosecution. The exception
provides that if the search and seizure action is to be
taken at night and the seizure officer has reason to
believe that obtaining of a search warrant or
authorization may give the accused an opportunity
to escape or conceal/destroy the evidence, then the
officer may proceed with the search and seizure
however, the officer must record in writing the
reasons for such belief i.e. make a memo of his such
belief before taking action.
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9. At this stage, taking note of all these aspects I
do not intent to go into the merits of the matter but
having given anxious consideration to the rival
submissions with reference to material placed before
me and the fact that applicant a heard patient and is
is in custody since the last 17.01.2024; that the
rigor of Section 37 of the N.D.P.S. act is duly
satisfied, forasmuch this court feels that the
applicant has available to him substantial grounds so
as to question the prosecution case; that trial is
likely to take its own considerable time and no useful
purpose would be served by keeping the applicant in
detention for an indefinite period therefore, I am
inclined to grant indulgence of bail to the petitioner
at this stage.
10. Consequently, the present bail application is
allowed and it is directed that the accused-petitioner
Jagdish S/o Shri Ratan Lal, arrested in connection
with the F.I.R. No. 02/2024, registered at Police
Station CBN Kota shall be released on bail provided
he furnishes a personal bond and two surety bonds
of sufficient amount to the satisfaction of the learned
trial court with the stipulation to appear before that
Court on all dates of hearing and as and when called
upon to do so. This order is subject to the condition
that accused, within 7 days of his release, and
sureties on the day of furnishing bail, will also
furnish details of their all bank accounts, with bank
and branch name, in shape of an affidavit, and
submit legible copy of their Aadhar cards as well as
copy of front page of Bank pass book, for smooth
recovery of penalty amount, if there arise a need for
recovery of penalty under Section 446 Cr.P.C in
future.”
7. Having considered the rival submissions, facts and
circumstances of the case, this Court prima facie finds that the co-
accused Jagdish has been enlarged on bail by the co-ordinate Bench
of this Court and the another co-accused Arjun (S.B. Criminal
Miscellaneous Bail Application No.12124/2024 ) has also been
enlarged on bail by this Court vide order dated 10.12.2024. This
Court also prima facie finds that the prosecution has not shown
any apprehension of the petitioners involving themselves in the
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case of similar nature or fleeing away from justice, in case they
are enlarged on bail.
8. Consequently, these bail applications under Section 483 of
BNSS are allowed. It is ordered that the accused-petitioners (1)
Nand Kishore S/o Shri Meghraj and (2) Bhajjan Lal S/o
Babu Lal, arrested in connection with F.I.R. No.02/2024 registered
at Police Station CBN Kota, District Kota shall be released on bail, if
not wanted in any other case, provided each of them 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 their appearance
before that court on each & every date of hearing and whenever
called upon to do so till completion of the trial.
9. A copy of this order be placed in each file.
(KULDEEP MATHUR),J
15-16-mohit/-
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