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Rajasthan High Court – Jodhpur
Om Prakash @ Chhotu Khan vs State Of Rajasthan (2025:Rj-Jd:30832) on 12 July, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:30832]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 1209/2025
Om Prakash @ Chhotu Khan S/o Sh. Munna Lal, Aged About 27
Years, Narani, Choti Sadari Ps , Dist. Pratapgarh (Confined In
District Jail, Pratapgarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Vijay Bishnoi
For Respondent(s) : Mr. Surendra Bishnoi, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
12/07/2025
1. The instant application for suspension of sentence has been
moved on behalf of the applicant in the matter of judgment dated
19.11.2022 passed by the learned Special Judge, NDPS Act
Cases, Pratapgarh in Special Sessions Case No.47/2020 whereby
he was convicted under Sections 8/15 & 8/25 of the NDPS Act and
on each count sentenced to suffer twenty years’ RI along with a
fine of Rs.2,00,000/- and in default to further undergo two years
RI.
2. It is contended by the learned counsel for the appellant that
the learned trial Judge has not appreciated the correct, legal and
factual aspects of the matter and thus, reached at an erroneous
conclusion of guilt, therefore, the same is required to be
appreciated again by this court being the first appellate Court. The
appellant-applicant is in jail since 14.06.2020 and hearing of the
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appeal is likely to take long time, therefore, the application for
suspension of sentence may be granted.
3. Per contra, learned public prosecutor has vehemently
opposed the prayer made by learned counsel for the accused-
applicant for releasing the appellant on application for suspension
of sentence.
4. Heard learned counsel for the parties and perused the
material available on record.
5. It is the case of the prosecution that, upon observing a
vehicle under suspicious circumstances, the police attempted to
intercept and stop it. However, the accused brought the vehicle to
a halt at a considerable distance from the police party and
managed to escape from the scene by taking advantage of the
pitch darkness. It is further claimed that certain quantity of
contraband was recovered from the said vehicle. The prosecution
claims that the petitioner was identified by two constables Mukesh
Kumar (PW-2) and Vinay Pratap Singh (PW-3). According to their
statements, they purportedly saw the accused from behind while
he was fleeing towards the jungle and claim to have identified him
with the aid of a torchlight they were carrying. These two
witnesses, PW-2 Mukesh Kumar and PW-3 Vipin Pratap Singh, are
the police constables and were the members of team deployed in
the same police station where PW-5 Shambhoo Lal, the seizing
officer was a sub-inspector at the relevant point of time. These
two constables are not the residents of the area where the
petitioner resides. Cross-examination was done to shake their
credibility and to elicit the truth and in that effort some material
has come out and certainly the same is strengthening the plea of
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defense regarding their being a tailor-made witness instead of
witnesses of the facts. These two constables had never an
occasion to personally meet the petitioner and to visit his house.
They were deployed in that area just a few months prior to the
incident. They were chasing from behind the accused and the
distance was around 50 meters as told by them. The face of the
accused was towards the jungle and these two witnesses were
behind him. It was a pitch dark night and a jungle area. There
seems bleak possibility of identifying the accused from behind in a
jungle when there is a pitch dark night. Presumably, there was a
considerable distance between the police team and the vehicle
carrying contraband and that’s why flight of the accused could be
possible by having enough time to stop the vehicle to alight and to
run away. Be that as it may, the above is not the finding of this
court rather just an observation to decide the instant bill
application through a just order.
6. Moving to the legal aspect of the matter, there is plea of total
non-compliance of the section 42 of the NDPS Act and a strong
plea has been raised with regard to competence of the seizing
officer in effecting search and seizure. Admittedly, PW-5 Shambhu
Lal, seizing officer was a sub-inspector deployed at police station
concerned where one Ravindra Pratap Singh PW-1 was posted as a
circle inspector and SHO of police station. PW-5 Shambhoo Lal
may be a second officer of the police station but he was never
posted or deployed as SHO of the police station by a superior
authority. Ordinarily, an order of posting an SHO is passed or
issued by the Superintendent of Police or other competent
authority but here in this case no such order exists. It is claimed
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that PW-5 Shambhu Lal was having charge of police station since
PW-1 Ravindra Pratap Singh was not there in the police station
when the incident took place. As a matter of fact, no such entries
in the Roznamcha Diary has been shown, wherefrom it can be
inferred or verified that Ravindra Pratap Singh was not in the
police station and the charge was handed over to PW-5 Shambhu
Lal. There is no piece of paper available on record to bolster the
claim of PW-5 Shambhoo Lal of his bieng SHO of the Police Station
at the relevant time.
6.1. 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.
6.2. 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.
6.3. 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
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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(Downloaded on 18/07/2025 at 10:31:32 PM)
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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.
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
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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. 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.
10. 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.
11. Accordingly, the application for suspension of sentence filed
under Section 389 Cr.P.C. is allowed and it is ordered that the
sentence passed by learned trial court, the details of which are
provided in the first para of this order, against the appellant-
applicant named above shall remain suspended till final disposal of
the aforesaid appeal and he shall be released on bail provided he
executes 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 in this court on 14.08.2025 and
whenever ordered to do so till the disposal of the appeal on the
conditions indicated below:-
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1. That he will appear before the trial Court in the month
of January of every year till the appeal is decided.
2. That if the applicant changes the place of residence, he
will give in writing his changed address to the trial Court
as well as to the counsel in the High Court.
3. Similarly, if the sureties change their address(s), they
will give in writing their changed address to the trial
Court.
8. The learned trial Court shall keep the record of attendance of
the accused-applicant in a separate file. Such file be registered as
Criminal Misc. Case related to original case in which the accused-
applicant was tried and convicted. A copy of this order shall also
be placed in that file for ready reference. Criminal Misc. file shall
not be taken into account for statistical purpose relating to
pendency and disposal of cases in the trial court. In case the said
accused applicant does not appear before the trial court, the
learned trial Judge shall report the matter to the High Court for
cancellation of bail.
(FARJAND ALI),J
47-Mamta/-
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