Rajasthan High Court - Jodhpur

Mukesh vs State Of Rajsthan ... on 4 October, 2023

Bench: Kuldeep Mathur

[2023:RJ-JD:32808]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous Bail Application No. 12038/2023 Mukesh S/o Tikamchand Jat, Aged About 22 Years, R/o Netara, Saiyo Ka Talla, Chouhtan P.s., Dist. Barmer (Lodged In Dist. Jail, Chittorgarh)

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

----Respondent

For Petitioner(s) : Mr. Ashok Kumar Khilery For Respondent(s) : Mr. Mukesh Trivedi, P.P.

HON'BLE MR. JUSTICE KULDEEP MATHUR Order

04/10/2023 This 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.400/2021 registered at Police Station Nimbahera Sadar,

District Chittorgarh for the offence under Section 8/15 of the

NDPS Act.

Heard learned counsel for the petitioner and learned Public

Prosecutor. Perused the material available on record.

Learned counsel for the petitioner submitted that as per

prosecution, contraband (poppy husk/straw) weighing 95 kg. 500

gm. was recovered from the conscious possession of the present

petitioner and co-accused Chandraveer on 15.10.2021. Learned

counsel submitted that co-accused Chandveer and Akshay have

already been enlarged on bail by a co-ordinate Bench of this Court

vide order dated 15.09.2023, passed in S.B. Criminal Misc. 3 rd Bail

Application No.6952/2023 and S.B. Criminal Misc. 2 nd Bail

Application No. 5723/2023. Learned counsel submitted that from

[2023:RJ-JD:32808] (2 of 10) [CRLMB-12038/2023]

the perusal of the order passed by co-ordinate Bench of this Court

in the case of Chandraveer (supra), it is evident, that co-ordinate

Bench of this Court has found that the various provisions

contained in Section 42 of the NDPS have not been complied with

in the present case. Learned counsel submitted that non-

compliance of the mandatory provisions of the NDPS Act has to be

viewed seriously by the Courts.

Learned counsel further submitted that the case of the

present petitioner is not distinguishable from that of the above-

named co-accused persons who have already been enlarged on

bail; the petitioner is in judicial custody and the trial of the case

will take sufficiently long time.

On these grounds, he implored the court to enlarge the

petitioner on bail.

The order dated 15.09.2023 passed in S.B. Criminal Misc. 3 rd

Bail Application No.6952/2023 is reproduced for ready reference.

"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                                   400/2021
   2.     Concerned Police Station                     Sadar Nimbahera
   3.     District                                     Chittorgarh
   4.     Offences alleged in the FIR                  Sections 8/15 and 29 of
                                                       NDPS Act.
   5.     Offences added, if any                       ---

6. Date of passing of impugned 25.04.2023 order

[2023:RJ-JD:32808] (3 of 10) [CRLMB-12038/2023]

2. The first bail application of petitioner Akshay came to be dismissed by this Court vide order dated 21.12.2022 with liberty to the petitioner to file afresh after filing of chargesheet. The second bail application of petitioner Chandraveer 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, I.O. has been examined, hence the present second bail application is filed.

3. 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. 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.

[2023:RJ-JD:32808] (4 of 10) [CRLMB-12038/2023]

4. 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.

5. Heard and perused the material available on record. It is pertinent to consider the entries made in the Roznamcha diary. As per entry no. 16 made on 15.10.2021 at 10:24 a.m., Mr. Phool Chand, who was posted as the SHO of P.S. Sadar Nimbahera, handed over the charge to ASI Shankar Lal. It is the case of the defence that the Seizing Officer Narulal was neither posted as SHO nor any charge of the concerned Police Station was given to him. According to entry no. 20 of the same day, SI Narulal took over the charge from ASI Shankar Lal and as per entry no. 22, he again shifted the charge towards Shankar Lal. Thereafter, entry no. 23 reflects that SI Narulal left for Nakabandi and in pursuance thereof, the vehicle pertaining to the present matter was intercepted; search and seizure of the same was conducted and the present FIR got lodged. The superintendent of police is authorised to appoint the SHO and the appointed SHO of the P.S. Sadar Nimbaheda is Mr. Phool Chand Tailor. Now, ideally, Phool Chand Tailor has the authority to handover the charge of the police station to an officer of an appropriate rank for a while when he is stepping out of the station which has been done by him as per entry no. 16. But, the same authority could not and did not exist with ASI Shankar Lal as the authority once delegated cannot be further delegated again, thus, delegation of the charge of the police station could not be executed by ASI Shankar Lal. In the present matter, SI Narulal took the charge for himself on his own from ASI Shankar Lal and then handed it over back to him. Neither did the SI have the authority to take over the charge from the ASI nor was he

[2023:RJ-JD:32808] (5 of 10) [CRLMB-12038/2023]

entitled to conduct the investigation, more specifically the search and seizure, in the present matter as he was not the then SHO posted at the Police Station and no charge was handed over to him by appropriate authority and correct route of delegation. If the SHO Phool Chand had entrusted SI Narulal with the charge of the police station only then it would have been appropriate and accurate for him to conduct the search and seizure in the capacity of an acting SHO in the case at hand. At this juncture, the bail plea that the above-mentioned entries, especially entries 20 and 22, have been made in the Roznamcha only to accommodate and ratify the actions of the SI Narulal in order to satisfy the legal position contained under the NDPS Act and S.O. 115 published in Notification No. F. 1(3) FD/EX/85-I dated 16-10-86 seems to be worth considering, therefore, the pleading raised by defence regarding the possibility that the entries were made in the Roznamcha diary with dishonest intention cannot be ruled out. In the case at hand, nothing has been recovered from the petitioner-Akshay and no other legally admissible evidence that could connect the petitioner to the crime or to the other co-accused persons for that matter has come to the fore, thus, the disclosure statement of the co-accused on the basis of which the petitioner- Akshay has been made an accused in this case remains just illusory knowledge and does not become a fact proved as no fact has been discovered in consequence of the information disclosed by the co-accused, thus, it cannot be said with certainty that the accused can be roped in for commission of offence under Section 29 of the NDPS Act. Whether the information disclosed in the statement made by the co-accused is admissible in evidence or not is an issue to be adjudged after appreciation of evidence during trial but at this stage,

[2023:RJ-JD:32808] (6 of 10) [CRLMB-12038/2023]

a case of bail is made out in favour of the petitioner and the liberty granted to him by the Constitution of India cannot be curtailed in absence of any legally admissible piece of evidence against him.

6. 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.

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. 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

[2023:RJ-JD:32808] (7 of 10) [CRLMB-12038/2023]

'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.

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

[2023:RJ-JD:32808] (8 of 10) [CRLMB-12038/2023]

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 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 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

[2023:RJ-JD:32808] (9 of 10) [CRLMB-12038/2023]

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. This Court is cognizant of the provisions contained in Section 37 of the NDPS Act but considering the submissions made 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.

15. Accordingly, the instant bail applications under Section 439 Cr.P.C. are allowed and it is ordered that the accused-petitioners shall be enlarged on bail provided each of them 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 their appearance before the court concerned on all the dates of hearing as and when called upon to do so."

Per contra, learned Public Prosecutor has vehemently

opposed the bail application. However, he was not in a position to

refute the fact that above named co-accused persons have already

been enlarged on bail by a co-ordinate Bench of this Court.

[2023:RJ-JD:32808] (10 of 10) [CRLMB-12038/2023]

Having considered the rival submissions, facts and

circumstances of the case, so also the fact that the case of the

present petitioner is not distinguishable from that of the above-

named co-accused persons who have already been enlarged on

bail by a co-ordinate Bench of this Court , this Court without

expressing any opinion on merits/demerits of the case deems it

just and proper to enlarge the petitioner on bail.