Sunil Kumar Rao vs The State Of Madhya Pradesh
2022 Latest Caselaw 9584 MP

                                                        1
                                   IN THE HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                      BEFORE
                                        HON'BLE SHRI JUSTICE VISHAL DHAGAT
                                                ON THE 13th OF JULY, 2022

                                    MISC. CRIMINAL CASE No. 22937 of 2022

                              Between:-
                              SUNIL KUMAR RAO S/O SHRI JAGDISH PRASAD
                              RAO , AGED ABOUT 30 YEARS, R/O WARD N. 10,
                              PURANI BASTI, DISTRICT ANUPPUR (M.P.)
                              (MADHYA PRADESH)

                                                                                      .....PETITIONER
                              (BY MR. RISHABH SINGH, ADVOCATE)

                              AND

                              THE STATE OF MADHYA PRADESH THROUGH
                              P.S. KOTWALI DISTRICT SHAHDOL M.P.
                              (MADHYA PRADESH)

                                                                                   .....RESPONDENTS
                              (BY MR. K.S.BAGHEL, GOVT. ADVOCATE)

                            This application coming on for hearing this day, the court passed the
                      following:
                                                         ORDER

This is repeat (3rd) bail application filed under Section 439 of Cr.P.C. on

behalf of applicant, who is in jail since 13.08.2021 in connection with Crime No.661/2021, registered at Police Station-Kotwali, District -Shahdol for the offence punishable under Section 8, 20 of NDPS Act.

Counsel appearing for applicant submitted that on basis of information from informer, Police intercepted vehicle No.MP-65-BB-1040. Sunil K.Rao, Rajkumar Sharma and Digamber Rathore were found in vehicle. On search, Signature SAN Not Verified 120kg of Ganja was seized from the vehicle. Counsel appearing for applicant Digitally signed by NEETI TIWARI submitted that mandatory provision of Section 41 & 42 of NDPS Act was not Date: 2022.07.15 13:08:08 IST

complied with. Since, there was non-compliance of mandatory provision. Counsel for applicant relied on judgment reported in (2016) 11 SCC 687 in the case of State of Rajasthan Vs. Jagraj Singh @ Hansa and submitted that if search is carried out between sunset and sunrise, then officer must record his reason to believe that search warrant from competent authority cannot be obtained without affording opportunity of concealment of evidences and facility for escape of offender. After recording grounds of belief, search can take place but not without recording said grounds. Counsel for applicant also relied on judgment reported in (2014) 12 SCC 266 (Sarija Banu @ Janarthani @ Janani & Anr. Vs. State through Inspector Of Police). Relying on said

judgment, it was argued that compliance of Section 42 of the Act is mandatory and is a relevant fact to be taken into account while considering the bail application. Counsel for applicant also relied on judgment rendered in the case o f Babu Singh & Ors. Vs. State of UP reported in (1978) 1 SCC 579. Relying on said order, it is submitted that applicant can argue subsequent application on basis of more material, further developments and different considerations. If such material is placed before Court, then Court can consider said circumstances and may not reject the bail application on the ground that earlier bail application was dismissed on merit. In view of aforesaid facts and circumstances of the case, counsel for applicant prays for grant of bail to the applicant.

Govt. Advocate appearing for State opposed the application for bail. It is submitted that applicant is having criminal antecedent, huge quantity of ganja has been seized from him and earlier bail application filed by applicant has been Signature SAN Not Verified dismissed on merits, therefore, repeat bail application filed by applicant may Digitally signed by NEETI TIWARI Date: 2022.07.15 also be dismissed.

13:08:08 IST

Heard learned counsel for parties.

Search warrant under Section 42 of the Act is required, when search is made in any building or conveyance not by a gazetted officer. In the present case, panchanama of search has been signed by Superintendent of Police, who is gazetted officer, therefore, compliance of Section 42 of the Act is not necessary. No Case is made out for non-compliance of Section 42 of NDPS Act.

Accordingly, repeal bail application filed by applicant is dismissed.

                                                                                (VISHAL DHAGAT)
                                                                                     JUDGE
                      nd




Signature
 SAN      Not
Verified

Digitally signed by
NEETI TIWARI
Date: 2022.07.15
13:08:08 IST