Rajasthan High Court - Jodhpur

Mangi Lal vs State Of Rajasthan-State ... on 3 October, 2023

Bench: Farjand Ali

[2023:RJ-JD:32440]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous Bail Application No. 4470/2023

Hadmana Ram S/o Budha Ram Bishnoi, Aged About 27 Years, R/o Madhaniyo Ki Dhani Palli Matora Ps Distt. Jodhpur (Lodged In Dist. Jail Chittorgarh)

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

----Respondent Connected With S.B. Criminal Miscellaneous Bail Application No. 4471/2023 Mangi Lal S/o Sukha Ram Bishnoi, Aged About 20 Years, R/o Madhaniyo Ki Dhani Palli Matora Ps Dist. Jodhpur (Lodged In Dist. Jail Chittorgarh)

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

----Respondent

For Petitioner(s) : Mr. Vijay Raj Bishnoi Mr. Dilip Kumar Sharma Mr. Vinod Sharma For Respondent(s) : Mr. G. Singh, 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 applications under Section 439 CrPC at the

instance of accused-petitioners. The requisite details of the matter

are tabulated herein below:

S.No.                            Particulars of the Case
     1.     FIR Number                                476/2021


 [2023:RJ-JD:32440]                        (2 of 7)                     [CRLMB-4470/2023]


     2.     Concerned Police Station                     Sadar Nimbahera
     3.     District                                     Chittorgarh
     4.     Offences alleged in the FIR                  Sections 8/15 of NDPS
                                                         Act.
     5.     Offences added, if any                       ---

6. Date of passing of impugned 16.06.2022 order

2. It is contended on behalf of the accused-petitioners 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. He 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. 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.

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3. Contrary to the submissions of learned counsel for the

petitioner, learned Public Prosecutor opposes the bail application

and submits that the present case is not fit for enlargement of

accused on bail.

4. Heard and perused the material available on record. It is the

case of defence that the Seizing Officer was neither posted as SHO

nor any charge of the concerned Police Station was given to him.

PW.1 Naru Lal, the Sub-Inspector who conducted the search and

seizure has been examined in the trial and he has categorically

stated in cross-examination that one Phoolchand was the SHO

posted at the concerned police station and he was second in

command. He has further stated that whenever a senior officer

posted at a police station is present in the area falling under the

jurisdiction of that police station, then he is the in-charge of that

police station and has admitted that the then SHO was in fact,

present in the jurisdictional area of the concerned police station.

He has further admitted that there is nothing in writing, neither on

record nor in the Roznamcha, which can prove the fact that the

SHO handed over the charge of the police station to him. Now,

this court deems it appropriate to discuss the law prevalent in the

matter.

5. 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.

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6. 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.

7. 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.

8. 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:-

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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.

9. 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

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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.

10. 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.

11. This Court is cognizant of the provisions contained in

Section 37 of the NDPS Act but considering the submissions made