[2023:RJ-JD:32261] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous 2nd Bail Application No. 11087/2023 Gori Lal S/o Bihari Lal, Aged About 52 Years, R/o Chokdi PS Dhamotar Dist. Pratapgarh (At Present Lodged In Dist. Jail Jalore)
----Petitioner Versus State Of Rajasthan, Through PP
----Respondent For Petitioner(s) : Mr. Neeraj Kumar Gurjar For Respondent(s) : Mr. Anda Ram, PP HON'BLE MR. JUSTICE FARJAND ALI Order 03/10/2023
1. The jurisdiction of this court has been invoked by way of filing an instant 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 606/2021
2. Concerned Police Station Sanchore
3. District Jalore
4. Offences alleged in the FIR Sections 8/18 and 29 of
NDPS Act.
5. Offences added, if any Section 25 of NDPS Act
6. Date of passing of impugned 11.08.2023
order
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2. The second bail application of petitioner came to be dismissed by this Court vide order dated 16.03.2023 as the matter pertained to recovery of contraband above commercial quantity and there were no favourable circumstances in favour of the petitioner apparent at that time. Now, seizure officer has been examined, hence the present second bail application is filed.
3. The concise facts of the case as alleged in the FIR are that on 17.12.2021 at around 03:03 p.m., a Honda Amaze bearing registration No. RJ03 CB 4117, wherein four persons including the present petitioner were sitting, was stopped by Head constable Dharma Ram. Upon opening the gate of the car, smell of contraband opium was emanating from therein. On conducting a search of the car he found three plastic bags containing contraband opium weighing one Kg each.
4. 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 several flaws and latches in the case of the prosecution. He submits that the seizing officer, while undertaking proceedings for search and seizure, was posted as Head constable of the concerned police station. He vehemently contended that sub-section (1) of Section 42 of NDPS Act enumerates the power of officers specified therein who are duly empowered by the Central Government or the State Government as the case may be and as per the law, a Head constable is not empowered to effect search, seizure and arrest under the NDPS Act as the notification dated October 16, 1986 (Downloaded on 12/11/2023 at 06:45:18 AM) [2023:RJ-JD:32261] (3 of 9) [CRLMB-11087/2023] empowers only those Sub Inspectors of Police to exercise the powers under Sec. 42 of NDPS Act who are posted as State House Officers. Learned counsel for the petitioner vehemently submits that the mandatory provisions of NDPS Act have not been complied with, thus, on this count, the recovery of the contraband is vitiated. He further submits that the sanctity of the seizure made in the premises of police station is highly doubtful and no explanation furnished by the team members as to why the search and seizure was not made at the place where the vehicle was intercepted. 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.
5. Per contra, learned Public Prosecutor opposes the bail application and submits that the alleged recovered contraband is way above the demarcated commercial quantity, thus, the impediment contained under Section 37 of NDPS Act will be attracted in the factual situation of the present case.
6. Heard and perused the material available on record. The SHO candidly admitted in his cross examination that head constable Dharma Ram along with one Kishna Ram brought a detained vehicle at P.S. Sanchore on the suspicion that they were having contraband opium in their car wherein four persons were sitting. It is an admitted position that no compliance of Section 42(2) of NDPS Act was made in this present case as the SHO candidly admitted in his cross-examination that no information (Downloaded on 12/11/2023 at 06:45:18 AM) [2023:RJ-JD:32261] (4 of 9) [CRLMB-11087/2023] under section 42(2) was supplied to higher officers before proceeding for the search and seizure of contraband. There remains no question to moot about the fact that there was previous information with the seizing officer regarding storage of illegal substance defined as contraband as per the provisions of NDPS Act, thus, the provision envisaged under Section 42 of NDPS Act would squarely apply in this case. It is strange fact to note that the office of Circle officer as well as Additional superintendent of police was just in front of the police station where the car was taken by the head contestable to conduct search and seizure of the vehicle which puts a dent in the genuineness of the story of the prosecution. It can be inferred that after interception of the vehicle and upon perceiving suspicious circumstances, if the vehicle and the person found at the spot were taken to the police station, then there was ample time for the seizing officer to call for the superior officer or to call a nearest Magistrate and to obtain a warrant for search and seizure but, that has not been done and thus, entire process of recovery vitiates on this count because of non compliance of Section 42 of NDPS Act. The prosecution has utterly failed to establish the fact that the mandatory provisions were complied with since it is admitted fact that the information was not supplied to the superior officer according to Section 42(2) of NDPS Act.
7. 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 (Downloaded on 12/11/2023 at 06:45:18 AM) [2023:RJ-JD:32261] (5 of 9) [CRLMB-11087/2023] procedure followed during search, seizure and arrest, cannot be overlooked.
8. 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.
9. 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.
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10. 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.
11. 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 (Downloaded on 12/11/2023 at 06:45:18 AM) [2023:RJ-JD:32261] (7 of 9) [CRLMB-11087/2023] 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.
12. A coordinate bench of this court passed a judgment dated 09.04.2004 in S.B. Criminal Appeal No. 659 of 2002 titled Bherulal Vs. State of Rajasthan wherein it was held as under:-
9. The object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same (Downloaded on 12/11/2023 at 06:45:18 AM) [2023:RJ-JD:32261] (8 of 9) [CRLMB-11087/2023] time, to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly.
13. 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.
14. Herein, in this case admittedly the vehicle was intercepted by a Head Constable, who was neither an officer competent to make search under Section 42 of NDPS Act nor had been instructed by the SHO under Section 41 of NDPS Act. He made the search of the vehicle and upon observing presence of contraband in the vehicle he confined the accused and took into custody the contraband and then they were taken to the Police Station. Admittedly the seizure was not made at the place where it was recovered. It does not matter that seizure memo was prepared at P.S. by Inspector because it was an empty formality as actually the search and seizure had been made on road by the Head Constable.
15. This Court is cognizant of the provisions contained in Section 37 of the NDPS Act but considering the submissions made (Downloaded on 12/11/2023 at 06:45:18 AM) [2023:RJ-JD:32261] (9 of 9) [CRLMB-11087/2023] by learned counsel for the accused-petitioner regarding non- compliance of statutory procedure, this court is of the opinion that it is a fit case for grant of bail to the accused petitioner. 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.
16. Accordingly, the instant bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner 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 120-Pramod/-
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