Rajasthan High Court - Jodhpur
State Of Rajasthan vs Mittu Singh (2025:Rj-Jd:20860) on 23 April, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:20860]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Crml Leave To Appeal No. 189/2024
State Of Rajasthan, Through Pp
----Appellant
Versus
Mittu Singh S/o Moti Singh, Aged About 24 Years, R/o 24 Meel
Rawji Ka Talab, P.s. Bheem, Dist. Rajsamand.
----Respondent
For Appellant(s) : Mr. Sri Ram Choudhary, AGA
For Respondent(s) : Mr. Vikram Singh Jaitawat
HON'BLE MR. JUSTICE FARJAND ALI
Order 23/04/2025
1. The instant Leave to Appeal filed by the State is directed against the judgment dated 11.09.2023, passed by the learned Special Judge, NDPS Act cases-cum-Additional Sessions Judge, Rajsamand, in NDPS Case No.70/2022, whereby the learned Judge acquitted the accused respondent from the charges.
2. Bereft of elaborated details, the facts of the case, briefly stated, are as follows: On 02.10.2016, PW-9 Lachchi Ram, Sub-Inspector of Police at Police Station Bheem, apprehended the accused respondent for having a plastic bag in his hand. A search was conducted, and 4 kg of poppy husk was found in the bag. The accused was arrested, a seizure of the contraband was made, and subsequently, an FIR was lodged. The investigation commenced and was concluded, and accordingly, the respondent was charged with committing an offence under Section 8 read with Section 15 (Downloaded on 09/05/2025 at 09:49:16 PM) [2025:RJ-JD:20860] (2 of 4) [CRLLA-189/2024] of the NDPS Act. 13 witnesses were examined for the prosecution, and 22 judgments were tendered into evidence to substantiate the charge. The accused was examined under Section 313 of the Cr.P.C., after which the parties were heard. The learned Trial Court acquitted the accused on the grounds of non-compliance with the mandatory provisions.
2.1. It is an admitted fact that the seizure was made by PW-1 Amar Singh and PW-9 Lachchi Ram. Neither of them were officers authorized to effect search and seizure under the NDPS Act, as, at the relevant time, one Brijesh Kumar was posted as SHO of Police Station Bheem. Neither PW-9 Lachchi Ram was posted as SHO, nor has any document been produced to show his action in the capacity of a Station House Officer. 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 area concerned such officer shall immediately handover the person arrested and articles seized to the concerned Police Inspectors or S.H.O. of the Police Station concerned.
A review of SO No.1/1986 issued by the Government of India makes it abundantly clear that only Sub-Inspectors posted as SHO (Downloaded on 09/05/2025 at 09:49:16 PM) [2025:RJ-JD:20860] (3 of 4) [CRLLA-189/2024] at certain police stations have the authorization to conduct search and seizure, but with the specific stipulation that they must be posted as SHO. In the present case, this condition was not met, as the Seizing Officer, who was a Sub-Inspector, was not posted as the SHO, and it is admitted that PW-9 Lachchi Ram was not posted as SHO. Therefore, he was not a competent officer to effect the search and seizure under the NDPS Act. 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.
17. To the same effect is the view expressed by this Court in State of Punjab v. Balbir Singh 1994 (i) SCC 299.
In para 13 Jayachandra Reddy, J. speaking for the Court observed thus:
Therefore, if an arrest or search contemplated under Sections 41 and 42 is made under a warrant issued by any other Magistrate or is made by any officer not empowered or authorised, it would per se be illegal and (Downloaded on 09/05/2025 at 09:49:16 PM) [2025:RJ-JD:20860] (4 of 4) [CRLLA-189/2024] would affect the prosecution case and consequently vitiate the trial.
The State of Rajasthan has sought leave from this Court by filing an appeal against the judgment of acquittal. If the leave is granted, the appeal shall be taken up, and the accused would be summoned to respond. In such a case, the fate of the case is apparent, and granting leave to appeal while keeping the appeal pending before this Court would be a futile exercise. Since the actions taken in this case cannot be undone and the legal and factual situation would remain as it is, even if the appeal is heard after several years.
4. In view of the above, I am of the opinion that permitting the State to file an appeal would be an exercise in futility. Thus, the instant criminal leave to appeal, being devoid of any merit, is hereby dismissed.
(FARJAND ALI),J 109-Mamta/-
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