Rajasthan High Court - Jodhpur

Ashok @ Mulla Ram vs State Of Rajasthan ... on 19 August, 2023

Bench: Farjand Ali

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        HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                         JODHPUR
     S.B. Criminal Miscellaneous 2nd Bail Application No. 7492/2023

Ashok @ Mulla Ram S/o Sh. Birbal, Aged About 23 Years, B/c
Nayak, R/o Merta City, Police Station Merta City, Distt. Nagaur.
( At Present Lodged At Jail In Merta)
                                                                     ----Petitioner
                                     Versus
State Of Rajasthan, Through Pp
                                                                   ----Respondent


For Petitioner(s)           :    Mr. O.P. Joshi
                                 Mr. Karan Joshi
For Respondent(s)           :    Mr. Mukhtiyar Khan, PP
                                 Mr. Rajveer CI, Kekri
                                 Mr. Bhanwar Lal, Police Line
                                 Deedwana



                HON'BLE MR. JUSTICE FARJAND ALI

                                     ORDER

DATE OF ORDER                            :::                      19/08/2023
BY THE COURT :-

1. The instant application for bail has been filed under Section

439 Cr.P.C. on behalf of the petitioner Ashok @ Mulla Ram, who is

in custody in relation to F.I.R. No.206/2022, Police Station Merta

City, District Nagaur, for the offence under Section 8/21 of the

NDPS Act.

2. His first bail application came to be rejected by this Court

vide order dated 19.12.2022 (S.B. Criminal Misc. Bail Application

No.9224/2022) while giving liberty to the petitioner to renew his

prayer after the statement of Investigating Officer is recorded in

the trial and now, the statement of P.W. 1 Bhanwar Lal as well as

the SHO P.W. 2 Rajveer Singh has been recorded by the learned

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trial Court on 19.04.2023 and 18.05.2023. Hence, the present bail

application.

3. Learned counsel for the petitioner 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. Admittedly, P.W. 1 Bhanwar Lal was not posted as SHO

of the Police Station Merta City and rather inspector Rajveer Singh

was posted as SHO at the relevant point of time.

4. Per contra, learned Public Prosecutor vehemently opposes

the prayer made by learned counsel for the petitioner and submits

that the matter pertains to recovery of 100 Bottles of Moncof

cough syrup. The impediment contained under Section 37 of

NDPS, Act will be attracted in the factual situation of the present

case.

5. Heard and perused the material available on record as well

as gone through the statutory provisions applicable in the matter.

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6. It is the case of the prosecution that on 10.06.2022 the

Seizing Officer Bhanwar Lal, Sub-Inspector was having charge of

the police station and the reason shown behind it was that the

SHO Rajveer Singh was not in the Police Station and the charge

was given to him. It is stated that when the Sub-Inspector

Bhanwar Lal was on patrol duty, he apprehended the petitioner

since his activities appeared to be suspicious. Certain quantity of

medicinal drug viz., Monocof Cough Syrup were recovered from a

carton which the accused was carrying with him. Admittedly, the

entire search and seizure was made by the Sub-Inspector

Bhanwar Lal and where-after the investigation was conducted by

the then SHO Rajveer Singh who was deployed there as SHO. It

is the case of the defence that the Seizing Officer Bhanwar Lal was

neither posted as SHO nor any charge of the concerned Police

Station was given to him. Now, this court deems it appropriate to

discuss the law prevalent in the matter.

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

procedure followed during search, seizure and arrest, cannot be

overlooked.

8. Section 42 of NDPS Act has been reproduced below for ready

reference:-

42. Power of entry, search, seizure and arrest without warrant or authorisation.--(l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs,

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revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,--

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

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Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector: Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.

9. 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.

10. 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

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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.

11. 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.

12. In many scenarios, owing to a very small number or

inadequate availability of police inspectors, sub-inspectors have

been posted as SHO(s) at several police stations. Taking into

account the fact that the sub-inspector is posted as SHO at

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certain police stations, it is understood that the authorization has

been conferred upon the sub-inspector to make search and

seizure but obviously with the specific stipulation that he should

be posted as SHO. But in the present matter, the same has not

been done as the sub-inspector was not posted as the SHO rather

the head constable who was actually posted as the SHO by

Rajveer Singh had further delegated his charge to the S.I.

According to the on-oath statement of PW-3, Rajveer Singh, it is

revealed that he had left the police station and given the charge

of the police station to head constable Hanuman and the said

head constable further gave the charge to sub-inspector Bhanwar

Lal. He is also present in person before this court and stands by

his statement. It is further deposed therein that Rajveer singh

took back the charge of the station from head constable

Hanuman which further reflects that Bhanwar Lal did not have

any official charge. Except the sworn statement of Bhanwar Lal

stating that he was given the charge, there is no other evidence

on record to support or verify his contention. For the purpose of

satisfaction, this Court had directed the learned Public Prosecutor

to procure daily Roznamcha diary of date 10.06.2022 so as to

convince this Court with regard to the claim made by the Seizing

Officer. Under the direction, the learned Public Prosecutor has

submitted requisite Roznamcha for perusal of the Court and he

admits that there was no entry in the Roznamcha showing

anything regarding the charge of the SHO Rajveer Singh to the

Seizing Officer P.W. 1 Bhanwar Lal. No such documents even for

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the name sake have been produced in trial showing direct entry

of the aforesaid fact.

13. The latin maxim 'delegata potestas non potest delegari'

which provides that once the power that has been delegated

cannot be further delegated or in other words, a delegatee cannot

further delegate the power delegated to him might operate in the

present facts and circumstances of the case though the same

remains a matter to be adjudicated after appreciation of evidence

during trial.

14. In Vijaysinh Chandubha Jadeja Vs. State of Gujarat reported in AIR 2011 SC 77, the Hon'ble Apex court indicated that the failure to comply with the provisions of NDPS Act would render the recovery of illicit articles ineffective and vitiate the conviction. The relevant part of the judgment is as follows:-

"Under Section 42 of the NDPS Act, the empowered officer can enter, search, seize and arrest even without warrant or authorisation, if he has reason to believe from his personal knowledge or information taken down in writing, that an offence under Chapter IV of the said Act has been committed. Under proviso to Sub-section (1), if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief and send the same to his immediate official superior in terms of Sub-section (2) of the Section.

'22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to

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be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under Sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision."

15. 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 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 but also 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

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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.

16. 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 time, to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly.

17. 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.

18. The life and liberty of an individual is so sacrosanct that it

cannot be allowed to be interfered with except under the authority

of law. It is a principle which has been recognised and applied in