[2023:RJ-JD:32440] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous Bail Application No. 4470/2023 Hadmana Ram S/o Budha Ram Bishnoi, Aged About 27 Years, R/o Madhaniyo Ki Dhani Palli Matora Ps Distt. Jodhpur (Lodged In Dist. Jail Chittorgarh)
----Petitioner Versus State Of Rajasthan, Through Pp
----Respondent Connected With S.B. Criminal Miscellaneous Bail Application No. 4471/2023 Mangi Lal S/o Sukha Ram Bishnoi, Aged About 20 Years, R/o Madhaniyo Ki Dhani Palli Matora Ps Dist. Jodhpur (Lodged In Dist. Jail Chittorgarh)
----Petitioner Versus State Of Rajasthan-State, Through Pp
----Respondent For Petitioner(s) : Mr. Vijay Raj Bishnoi Mr. Dilip Kumar Sharma Mr. Vinod Sharma For Respondent(s) : Mr. G. Singh, 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 applications under Section 439 CrPC at the instance of accused-petitioners. The requisite details of the matter are tabulated herein below:
S.No. Particulars of the Case
1. FIR Number 476/2021
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2. Concerned Police Station Sadar Nimbahera
3. District Chittorgarh
4. Offences alleged in the FIR Sections 8/15 of NDPS
Act.
5. Offences added, if any ---
6. Date of passing of impugned 16.06.2022 order
2. It is contended on behalf of the accused-petitioners that no case for the alleged offences is made out against him and his incarceration is not warranted. There are several flaws and laches in the case of the prosecution. He submits that the seizing officer, while undertaking proceedings for search and seizure, was not posted as S.H.O. 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 Sub- Inspector is not empowered to effect search, seizure and arrest under the NDPS Act as the notification dated October 16, 1986 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. 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.
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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. Heard and perused the material available on record. It is the case of defence that the Seizing Officer was neither posted as SHO nor any charge of the concerned Police Station was given to him. PW.1 Naru Lal, the Sub-Inspector who conducted the search and seizure has been examined in the trial and he has categorically stated in cross-examination that one Phoolchand was the SHO posted at the concerned police station and he was second in command. He has further stated that whenever a senior officer posted at a police station is present in the area falling under the jurisdiction of that police station, then he is the in-charge of that police station and has admitted that the then SHO was in fact, present in the jurisdictional area of the concerned police station. He has further admitted that there is nothing in writing, neither on record nor in the Roznamcha, which can prove the fact that the SHO handed over the charge of the police station to him. Now, this court deems it appropriate to discuss the law prevalent in the matter.
5. 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.
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6. 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.
7. 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.
8. 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:-
(Downloaded on 12/11/2023 at 06:45:00 AM) [2023:RJ-JD:32440] (5 of 7) [CRLMB-4470/2023] 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.
9. 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 (Downloaded on 12/11/2023 at 06:45:00 AM) [2023:RJ-JD:32440] (6 of 7) [CRLMB-4470/2023] 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.
10. 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. This Court is cognizant of the provisions contained in Section 37 of the NDPS Act but considering the submissions made 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 (Downloaded on 12/11/2023 at 06:45:00 AM) [2023:RJ-JD:32440] (7 of 7) [CRLMB-4470/2023] shall affect the rights of either of the parties during trial and this Court refrains from commenting on the niceties of the matter.
12. 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 35-Mamta/-
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