Samshuddin vs State Of Rajasthan
2021 Latest Caselaw 9819 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous II Bail Application No. 3894/2021

Samshuddin S/o Sh. Kamaruddin, Aged About 60 Years, R/o House No. 60, Mohd. Park, Nagma Nagar, Near Chhipa Society, Shah-Alam-Roza, P.s. Dani-Limada, Dist. Ahmadabad (Gujarat). (Presently Lodged In Central Jail, Udaipur).

----Petitioner Versus State Of Rajasthan, Through Pp

----Respondent

For Petitioner(s) : Mr. Shambhoo Singh Rathore, through VC For Respondent(s) : Mr. Mohd. Javed Gauri, P.P.

HON'BLE MR. JUSTICE SANDEEP MEHTA

Order

28/06/2021

The instant second application under Section 439 CrPC

has been preferred on behalf of the petitioner Samshuddin S/o

Kamaruddin, who is in custody in connection with FIR

No.125/2019 registered at the Police Station Surajpole for the

offences under Sections 8/20 and 29 of the NDPS Act.

The first bail application filed on behalf of the petitioner

was rejected by this court vide order dated 05.12.2020 giving him

liberty to file a fresh bail application after recording of the

statement of the seizure officer. Now the evidence of the seizure

officer has been recorded by the trial court. Thereafter, this

second bail application has been moved.

Learned counsel Mr. Shambhoo Singh Rathore,

representing the petitioner, vehemently and fervently urges that

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the petitioner has been falsely implicated in this case. The

recovery of Charas weighing 2 kg. 855 gm. shown to have been

effected from the possession of the petitioner is totally fabricated.

The initial search was undertaken by Mr. Abdul Rahman (P.W.6),

who gave information to the Mr. Ram Sumer Meena (P.W.6), SHO,

Police Station Surajpole. As per Mr. Rathore, the seizure was

made under the circumstances covered by Section 42 of the NDPS

Act and hence, it was obligatory for the seizure officer Mr. Ram

Sumer Meena to have forwarded the information to his superior

officers in writing. He further submits that mandatory

requirement of Section 50 of the NDPS Act was flouted because no

option of being searched in presence of a Gazetted Officer or a

Magistrate was given to the accused petitioner before undertaking

search and seizure. Mr. Rathore relied upon the judgment of the

Hon'ble Supreme Court in the case of Khekh Ram Vs. State of

H.P. (Criminal Appeal No.1110/2016 decided on

10.11.2017) and urges that the petitioner deserves indulgence of

bail in this case.

Learned Public Prosecutor, on the other hand

vehemently and fervently opposed the submissions advanced by

the petitioner's counsel. He urges that the search of the bus in

question, in which the petitioner was found with the contraband

Charas, was undertaken by Mr. Abdul Rahman, Inspector, SOG,

who had received information regarding an illegal consignment of

weapons. There was no prior information regarding transportation

of narcotic drugs. Thus, there was no requirement for ensuring

compliance of Section 42 of the NDPS Act. Learned Public

Prosecutor further pointed out that as the seizure was not effected

during personal search of the accused, there was no need to give

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him a notice under Section 50 of the NDPS Act. Learned Public

Prosecutor pointed out that contraband Charas weighing 2 kg. 855

gm., which is well above the commercial quantity was found

concealed inside a bag in possession of the accused petitioner and

hence, the restrictions contained in Section 37 of the NDPS Act

operate and as such, the petitioner is not entitled to be released

on bail.

I have given my thoughtful consideration to the

submissions advanced at bar and have gone through the material

available on record. As per the factual matrix of the case, Mr.

Abdul Rahman (P.W,.6) was posted as Inspector, SOG. He

received information regarding an illegal consignment of weapons

being transported in a bus of Jai Shree Ganesh Travels moving

between Neemach and Ahmedabad. The bus was stopped. The

petitioner was found on a single sleeper inside the bus. On search

being undertaken, the petitioner was found in possession of the

consignment of contraband Charas concealed in a bag. Manifestly,

thus, Mr. Abdul Rahman was not having any information regarding

transportation of Narcotic drugs. It is only during a surprise check

that the contraband was discovered in the bag in possession of the

present petitioner. Acting lawfully, Mr. Abdul Rahman immediately

informed the SHO Mr. Ram Sumer Meena, within whose

jurisdiction, the bus was stopped. He arrived at the spot and

effected the search and seizure proceedings. Since the seizure

was effected from a transport vehicle on a public road, the

provisions of Section 43 of the NDPS Act would apply to the

search and seizure proceedings and hence, the contention of the

learned counsel for the petitioner that the entire recovery is

vitiated on account of non-compliance of the procedure provided

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under Section 42 of the NDPS Act is misfounded. Furthermore,

since the seizure was effected from a bag in possession of the

accused, there was no reason to ensure compliance of the

procedure of Section 50 of the NDPS Act. The judgment in the

case of Khekh Ram relied upon by Mr. Rathore is distinguishable

because in the said case, the situation reveals that the accused

was acquitted by the trial court. The appeal against acquittal was

accepted by the High Court and the said judgment was over-

turned by the Supreme Court after appreciating the entire

evidence available on record. In the present case, the

appreciation of evidence is to be undertaken by the trial court and

any observation by this court at this stage on the material

collected so far may prejudice the trial. Hence, the observation

made in the case of Khekh Ram do not come to the aid of the

petitioner in his quest for procuring bail. The recovered

contraband weighs almost thrice the commercial quantity

prescribed under the schedule of the NDPS Act. Thus, the

restrictions contained in Section 37 of the NDPS act clearly

operate against the petitioner and hence, he does not deserve

indulgence of bail.

Accordingly, the instant second application for bail is

dismissed as being devoid of merit.

(SANDEEP MEHTA),J

42-Pramod/-

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