Gori Lal vs State Of Rajasthan ...
2023 Latest Caselaw 7750 Raj

[2023:RJ-JD:32261]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous 2nd Bail Application No. 11087/2023

Gori Lal S/o Bihari Lal, Aged About 52 Years, R/o Chokdi PS Dhamotar Dist. Pratapgarh (At Present Lodged In Dist. Jail Jalore)

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

----Respondent

For Petitioner(s) : Mr. Neeraj Kumar Gurjar For Respondent(s) : Mr. Anda Ram, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

03/10/2023

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

filing an instant application under Section 439 CrPC 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                                 606/2021

     2.     Concerned Police Station                   Sanchore

     3.     District                                   Jalore

     4.     Offences alleged in the FIR                Sections 8/18 and 29 of

                                                       NDPS Act.

     5.     Offences added, if any                     Section 25 of NDPS Act

     6.     Date of passing of impugned 11.08.2023

            order



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2. The second bail application of petitioner came to be

dismissed by this Court vide order dated 16.03.2023 as the matter

pertained to recovery of contraband above commercial quantity

and there were no favourable circumstances in favour of the

petitioner apparent at that time. Now, seizure officer has been

examined, hence the present second bail application is filed.

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

on 17.12.2021 at around 03:03 p.m., a Honda Amaze bearing

registration No. RJ03 CB 4117, wherein four persons including the

present petitioner were sitting, was stopped by Head constable

Dharma Ram. Upon opening the gate of the car, smell of

contraband opium was emanating from therein. On conducting a

search of the car he found three plastic bags containing

contraband opium weighing one Kg each.

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

latches in the case of the prosecution. He submits that the seizing

officer, while undertaking proceedings for search and seizure, was

posted as Head constable 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 Head

constable is not empowered to effect search, seizure and arrest

under the NDPS Act as the notification dated October 16, 1986

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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. He further submits that the sanctity of the seizure

made in the premises of police station is highly doubtful and no

explanation furnished by the team members as to why the search

and seizure was not made at the place where the vehicle was

intercepted. 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 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 and perused the material available on record. The

SHO candidly admitted in his cross examination that head

constable Dharma Ram along with one Kishna Ram brought a

detained vehicle at P.S. Sanchore on the suspicion that they were

having contraband opium in their car wherein four persons were

sitting. It is an admitted position that no compliance of Section

42(2) of NDPS Act was made in this present case as the SHO

candidly admitted in his cross-examination that no information

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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 contraband as per the provisions of

NDPS Act, thus, the provision envisaged under Section 42 of NDPS

Act would squarely apply in this case. It is strange fact to note

that the office of Circle officer as well as Additional superintendent

of police was just in front of the police station where the car was

taken by the head contestable to conduct search and seizure of

the vehicle which puts a dent in the genuineness of the story of

the prosecution. It can be inferred that after interception of the

vehicle and upon perceiving suspicious circumstances, if the

vehicle and the person found at the spot were taken to the police

station, then there was ample time for the seizing officer to call for

the superior officer or to call a nearest Magistrate and to obtain a

warrant for search and seizure but, that has not been done and

thus, entire process of recovery vitiates on this count because of

non compliance of Section 42 of NDPS Act. 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.

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

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procedure followed during search, seizure and arrest, cannot be

overlooked.

8. 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.

9. 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

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.

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10. 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 are a

concerned such officer shall immediately hand over

the person arrested and articles seized to the

concerned Police Inspectors or S.H.O. of the Police

Station concerned.

11. 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

[2023:RJ-JD:32261] (7 of 9) [CRLMB-11087/2023]

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

butal so 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 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.

12. 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

[2023:RJ-JD:32261] (8 of 9) [CRLMB-11087/2023]

time, to avoid abuse of the provisions by the officers,

certain safeguards are provided which in the context

have to be observed strictly.

13. 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.

14. Herein, in this case admittedly the vehicle was intercepted

by a Head Constable, who was neither an officer competent to

make search under Section 42 of NDPS Act nor had been

instructed by the SHO under Section 41 of NDPS Act. He made

the search of the vehicle and upon observing presence of

contraband in the vehicle he confined the accused and took into

custody the contraband and then they were taken to the Police

Station. Admittedly the seizure was not made at the place where

it was recovered. It does not matter that seizure memo was

prepared at P.S. by Inspector because it was an empty formality

as actually the search and seizure had been made on road by the

Head Constable.

15. This Court is cognizant of the provisions contained in

Section 37 of the NDPS Act but considering the submissions made

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by learned counsel for the accused-petitioner regarding non-

compliance of statutory procedure, this court is of the opinion

that it is a fit case for grant of bail to the accused petitioner.

Needless to say, none of the observations made herein under

shall affect the rights of either of the parties during trial and this

Court refrains from commenting on the niceties of the matter.

16. Accordingly, the instant bail application under Section 439

Cr.P.C. is allowed and it is ordered that the accused-petitioner

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.

(FARJAND ALI),J 120-Pramod/-

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