Rajasthan High Court - Jodhpur

Sumer vs State Of Rajasthan on 28 August, 2023

Bench: Farjand Ali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous 2nd Bail Application No. 10591/2023

Sumer S/o Annaram Vishnoi, Aged About 40 Years, R/o Dhana Ps Jhanwar Dist. Jodhpur (Lodged In Jail Chittorgarh)

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

----Respondent

For Petitioner(s) : Mr. Ashok Khilery For Respondent(s) : Mr. M. Khan, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

28/08/2023

1. The jurisdiction of this Court has been invoked by way of

filing the instant application under Section 439 Cr.P.C. at the

instance of accused-petitioner. The requisite details of the

matter are tabulated herein below:

S.No.                          Particulars of the Case
     1.    FIR Number                                  52/2022
     2.    Concerned Police Station                    Shambhupura
     3.    District                                    Chittorgarh
     4.    Offences alleged in the FIR                 Sections 8/18 of NDPS Act
     5.    Offences added, if any                      --

6. Date of passing of impugned 10.08.2023 order

2. The first bail application came to be dismissed by this Court

vide order dated 20.12.2022 with liberty to the petitioner to

file afresh after the statement of Seizure Officer is recorded in

trial. Now, the Seizure Officer has been examined, hence the

present second bail application is filed.

(2 of 6) [CRLMB-10591/2023]

3. The concise facts of the case as alleged in the FIR are that on

02.03.2022, while patrolling the Police saw a person walking

on the side of the road, upon seeing the police van the

petitoner tried to run away. Upon suspicion and after not

getting satisfactory answers from the suspected individuals,

the police officers searched the bag and gave a shakedown to

the petitioners. Upon search of bag, one plastic polythene

containing black-brown semi solid substance which was later

found to be contraband Afeem. The total weight of the opium

was 4 Kilograms.

4. It is contended on behalf of the accused-petitioner 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. Since it was a personal

search, therefore, a notice under Section 50 of the NDPS Act

was required to be given as the same has been made

mandatory provisions through plethora of judicial

pronouncements, more particularly in the case of Vijaysinh

Chandubha Jadeja vs State of Gujarat reported in

(2011) 1 SCC 609. He submits that the seizing officer had

been informed about the presence of narcotic substance in

the bag of the petitioner before he left to conduct search and

seizure, yet the seizing officer did not relay the above-

mentioned information to the senior officers before

proceeding further which is mandatory under Section 42 of

NDPS Act and thus, the entire process of recovery stands

vitiated on this count because of non-compliance of Section

(3 of 6) [CRLMB-10591/2023]

42 of NDPS Act. 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.

5. Per contra, learned Public Prosecutor opposes the bail

application and submits that the alleged recovered

contraband altogether is way above the demarcated

commercial quantity, thus, the impediment contained under

Section 37 of NDPS Act will be attracted in the factual

situation of the present case.

6. Heard. Perused the material available on record.

7. PW.2 Ramesh Kaviya, the Police Inspector who conducted the

search and seizure has been examined in the trial and he

categorically admits in cross-examination that prior to making

search, no notice under Section 50 of the NDPS Act was given

to the accused instead it was mentioned that Ex. P-8 notice

under Indian Evidence Act was given to the petitioner in this

case which does not come within the definition of Section 50

of the NDPS Act.

8. It is an admitted position that no compliance of Section 42(2)

of NDPS Act was made in this present case as the Seizing

Officer candidly admitted in his cross-examination that no

information under section 42(2) was supplied to higher

officers before proceeding for the search and seizure of

contraband. There remains no question to moot about the

fact that there was previous information with the seizing

officer regarding storage of illegal substance defined as

(4 of 6) [CRLMB-10591/2023]

contraband as per the provisions of NDPS Act, thus, the

provision envisaged under Section 42 of NDPS Act would

squarely apply in this case. The prosecution has utterly failed

to establish the fact that the mandatory provisions were

complied with since it is admitted fact that the information

was not supplied to the superior officer according to Section

42(2) of NDPS Act.

9. 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."

(5 of 6) [CRLMB-10591/2023]

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 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."

10. As per the mandate of law, if the officer has prior

information regarding breach of the provisions of NDPS Act,

he is under a legal obligation to note down the information

and before proceeding to conduct search and seizure, he

has to send a report to the superior officers. It is well

settled legal position of law that the provision of Sections 42

and 50 of the NDPS Act is required to be complied with

mandatorily as propounded in the case of Vijaysinh

Chandubha Jadeja (supra).

(6 of 6) [CRLMB-10591/2023]

11. In my considered view, the non-compliance of mandatory

provisions of NDPS Act, which have to be complied with