Rajasthan High Court - Jodhpur

Ishwar Lal Gurjar vs State Of Rajasthan ... on 12 May, 2023

Bench: Kuldeep Mathur

[2023/RJJD/015047]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous II Bail Application No. 5629/2023

Ishwar Lal Gurjar S/o Lt. Deva Lal Gurjar, Aged About 33 Years, R/o Gorana (Gyangarh), Kareda P.s., Dist. Bhilwara.

(Lodged In Dist. Jail, Bhiwara).

----Petitioner Versus State Of Rajasthan, Through P.P.

----Respondent

For Petitioner(s) : Mr. Dilip Singh Rathore. For Respondent(s) : Mr. S.K. Bhati, P.P.

HON'BLE MR. JUSTICE KULDEEP MATHUR

Order

12/05/2023 This second application for bail under Section 439

Cr.P.C. has been filed by the petitioner who has been

arrested in connection with F.I.R. No.200/2021, registered

at Police Station Kareda, District Bhilwara, for offences

under Section 8/15 of the NDPS Act.

The first bail application of the petitioner was

dismissed by this Court vide order dated 27.01.2023.

Heard learned counsel for the petitioner and learned

Public Prosecutor. Perused the materials available on record.

Learned counsel for the petitioner submitted that

similarly situated co-accused has already been enlarged on

bail by a coordinate Bench of this Court vide order dated

03.05.2023 in Criminal Misc. Bail Application

No.5233/2023, and the case of present petitioner is not

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distinguishable from that of the co-accused. The petitioner

is in judicial custody and the trial of the case will take

sufficiently long time, therefore, the benefit of bail should

be granted to the accused-petitioner. For ready reference,

the copy of order dated 03.05.2023 is reproduced herein

below:-

"1. The instant bail application has been filed by the petitioner Rajmal @ Raju Banjara S/o Bherulal Banjara under Section 439 Cr.P.C against the order impugned dated passed by learned court below in connection with FIR No.200/2021 registered at Police Station Kareda, District Bhilwara for the offences under Sections 8/15 of NDPS Act.

2. Learned counsel for the petitioner submits that a false case has been foisted against the petitioner. He has nothing to do with the alleged offences and no useful purpose would be served by keeping him behind the bars. There are several flaws and laches in the case of the prosecution. He submits that the seizing officer had been informed by the CID CB officers about the presence of narcotic substance in the seized vehicle bearing registration No. RJ30 GA 6260 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 42 of NDPS Act, therefore, the fetter contained under Section 37 of the NDPS Act does not come in way of releasing the petitioner on bail.

3. 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 240 kilograms of poppy husk, thus, the impediment contained under Section 37 of NDPS Act will be attracted in the factual situation of the present case.

4. Heard and perused the material available on record as well as gone through the statutory provisions applicable in the matter.

5. Right from inception, before progressing for the purpose of conducting search and seizure of the alleged contraband, the seizing team was having the information regarding the transportation of contraband which fact is apparent from a bare perusal of the 'Hukmnama' issued to constable Rajendra Kumar which is reproduced herein below for ready reference:-

"tfj;s gktk vkidks fy[kk tkrk gS fd bejkst lh0 vkbZ0 Mh0 lh0 ch0 dh lwpuk ds vuqlkj nkSjkus ukdkcanh idMs x;s Jh bZ'oj yky firk Lp0 Jh nsokyky xqtZj mez 32 lky fuoklh xksjk.kk (Kkux<) Fkkuk djsMk ftyk HkhyokMk o Jh jktey mQZ jktq

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firk Jh HkS:yky catkjk mez 36 lky fuoklh rstiqjk jkfTk;kokl Fkkuk dkadjksyh ftyk (jktlean) ds dCts 'kqnk fidvi uEcj RJ30 GA 6260 esadksbZ lafnX/ k eknd inkFkZ vQhe MksMk pwjk gksuh dk iw.kZ laHkkouk gS mDr fidvi dh ryk'kh Yksuh gS ftlesa nks Lora= ekSrfcjku dh vko';drk gS A"

6. Now, there remains no question to moot about the fact that there was previous information with the seizing officer regarding transportation of illegal substance defined as contraband as per the provisions of NDPS Act, thus, the provision envisaged under Section 42 of NDPS Act would squarely apply in this case.

7. The prosecution has failed to prove the case beyond every shadow of reasonable doubt as it has not been proved that the information was properly supplied to the superior officer according to Section 42(2) of NDPS Act. There is neither any proof of dispatching of the information to the superior officer nor is there any proof that reflects that the same was sent or received and lastly, there is nothing on record to show that there was acknowledgment on part of the superior officer upon receiving the information which is mandatory in nature.

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 PW1- Surendar Godara (Sub-Inspector) 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. For ready reference, the relevant part of the cross-examination of the seizing officer is quoted below:-

";g dguk lgh gS fd eq>s lhvkbMh lhch ds vf/kdkfj;ksa ls lwpuk feyus ds ckn dk;Zokgh ls igys ;k dk;Zokgh ds nkSjku /kkjk 42 (2) ,uMhih,l ,DV dh lwpuk eqfrZc dj mPpkf/kdkfj;ksa dks ugha Hksth Fkh]"

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

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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 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. This court has passed a detailed order in this context in S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1199/2022; Shrawan Kumar v. State of Rajasthan, wherein owing to non-compliance of Section 42 of NDPS Act, the application for suspension of sentence was allowed. The relevant part of the said order is reproduced as under:-

"10. Likewise, if the Police Officer has information regarding illegal transportation of any contraband and he is required to take immediate steps then it is incumbent upon him to write down the information in writing, send a copy of the same to the superior officer forthwith and mention all these things in daily rojnaamcha diary. It is an admitted position that the information was not relayed to the superior officers and the other requisites were also not fullfilled. It is trite law that the provision of Section 42 of the NDPS Act is required to be applied

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mandatorily as propounded in the case of Vijaysinh Chandubha Jadeja (supra). The NDPS Act is called a draconian law because of its stringent provision of punishment and that is why the mandatory provisions are required to be complied with stricto sensu, failure of which vitiates the recovery."

11. Nothing remains to debate in respect of non- compliance of Section 42 of NDPS Act. 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 Section 42 of the NDPS Act is required to be complied with mandatorily as propounded in the case of Vijaysinh Chandubha Jadeja (supra) and Shrawan Kumar (supra).

12. As far as the question of fetter contained under Section 37 of NDPS Act is concerned, this Court is aptly guided by the recent ruling titled Mohd Muslim @ Hussain V. State (NCT OF DELHI) passed by Hon'ble the Supreme Court in Special Leave Petition (CRL.) NO(S). 915 of 2023 vide order dated 28.03.2023, wherein Section 37 of the NDPS Act has been discussed in detail and the accused was allowed to be released on bail while holding that the impediment contained under Section 37 is not a bar to grant of bail in cases where there is undue delay in conclusion of trial. The paragraphs of the afore-said judgment relevant to the present matter is reproduced below:

"18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail. What is meant by "not guilty" when all the evidence is not before the court? It can only be a prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent)

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is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws - be balanced against the public interest.

19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well.

Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such

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as those enacted under Section 37 of the NDPS Act."

13. In my considered view, the non-compliance of mandatory provisions of NDPS Act, which have to be complied with stricto sensu, is a matter of serious concern and the embargo contained under Section 37 of NDPS Act shall not come in the way of this Court while entertaining a bail plea akin to the instant one.

14. In light of the judgments cited above and 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.

15. Having regard to the totality of facts and circumstances as available on record and upon a consideration of the arguments advanced, at this stage of infancy of trial, this Court refrains from passing any comments over the admissibility of evidence and the quality of evidence yet it is of the firm opinion that the petitioner deserves to be enlarged on bail in this case.

16. Accordingly, the second bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner Rajmal @ Raju Banjara S/o Bherulal Banjara shall be enlarged on bail provided he furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance before the court concerned on all the dates of hearing as and when called upon to do so."

Learned Public Prosecutor has opposed the bail

application. However, he is not in a position to refute the

fact that the case of petitioner is not worse than that of the

co-accused who has already been enlarged on bail.

Having considered the rival submissions, facts and

circumstances of the case, without expressing any opinion

on merits/demerits of the case, this Court is of the opinion

that the bail application filed by the petitioner deserves to

be accepted. Thus, the rigors of Section 37 of the NDPS Act

are not attracted in the present case.

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Consequently, the second bail application under