Nazir Khan vs State Of Rajasthan ...
2023 Latest Caselaw 7355 Raj

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous Bail Application No. 10237/2023

Nazir Khan S/o Sh. Sohan Khan, Aged About 26 Years, Sayarpura, Sindhiyon Ki Dhani, Kaparda, P.s. Kaparda, Bilara, Dist. Jodhpur (Raj.). (At Present Lodged At Central Jail Ajmer).

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


For Petitioner(s)            :     Mr. Lokesh mathur
For Respondent(s)            :     Mr. Gaurav Singh, PP



                  HON'BLE MR. JUSTICE FARJAND ALI

                                       Order

19/09/2023

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                                295/2022
     2.     Concerned Police Station                  Bijoliya
     3.     District                                  Bhilwara
     4.     Offences alleged in the FIR               Sections 8/15 of NDPS
                                                      Act.
     5.     Offences added, if any                    ---
     6.     Date of passing of impugned 21.07.2023
            order

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

on 12.09.2022 Sub-Inspector Kailash Chand gave a report to the

effect that after leaving nakabandi, SHO informed about an Innova

car bearing registration no. GJ12 DA 8136, the driver of which had

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turned his car towards Bijolia after seeing the police at Undro ka

kheda and instructed them to intercept and check the vehicle. On

this, the team reached Kesuvillas road and after sometime the

aforementioned car was seen coming in high speed. On spotting

the police, the driver turned around the car towards Rampuriya

and after chasing the car for a while, the car stopped at

Govardhan village. One person got down from the car and tried to

flee from the spot, thereafter, the police apprehended the

accused-petitioner and the search and seizure of the alleged

contraband(s) was conducted and poppy husk weighing 399 kg

was allegedly recovered from the car.

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

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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.

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. Have considered the submissions made by both the parties

and have perused the material available on record.

6. Section 41 of NDPS Act has been reproduced under for

reference:

41. Power to issue warrant and authorisation.--(l) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed:

(2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government

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including the para-military forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place.

(3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub- section (2) shall have all the powers of an officer acting under section 42.

7. A bare perusal of the aforementioned provision revealing

that an officer authorised under this section can instruct his

subordinate to act and to make search and seizure. Admittedly the

SHO who instructed the ASI to conduct search and seizure was

not an officer who is authorised under Section 41 of NDPS Act.

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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:-

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 area concerned such officer shall immediately handover the person arrested and articles seized to the concerned Police Inspectors or S.H.O. of the Police Station concerned.

9. No where under Section 41 and Section 42 as well as the

S.O. 115 dated 16-10-86, it is rendered that the posted SHO can

instruct any other officer to conduct search and seizure on his

behalf. So, this case would not fall within Section 41 and Section

42 of the NDPS Act. Patently the search and seizure, in the

present matter was not conducted by an authorised person as the

seizing officer was neither the then SHO posted at the Police

Station nor a person to whom charge was handed over by

appropriate authority. The SI had been given the charge by the

SHO and there is no entry in any document with regard to this

effect. On the contrary, the SHO was very much present and he

gave instructions to the SI to conduct search and seizure. It is not

comprehensible as to under what authority the SHO can issue

such instructions to an officer who is not authorised to conduct

seizure and recovery. In many scenarios, owing to a very small

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number or inadequate availability of police inspectors, sub-

inspectors have been posted as SHO(s) at several police stations.

Taking into account the fact that the sub-inspector is posted as

SHO at certain police stations, it is understood that the

authorization has been conferred upon the sub-inspector to make

search and seizure but obviously with the specific stipulation that

he should be posted as SHO. But in the present matter, the same

has not been done as the sub-inspector was not posted as the

SHO.

10. 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.

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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.

11. 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.

12. 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

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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.

13. 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.

14. The purpose of keeping any person behind the bars during

trial is not more than to ensure a smooth, fair and speedy trial as

well as to see that the accused may not hamper the prosecution

witnesses or may not flee from justice. The sentence would run

after passing of the judgment of conviction and hearing on the

point of sentence. The main purpose is only to see that the

accused would have to appear before the Court during the course

of trial and at the time of his conviction so that he may receive the

sentence as may be inflicted upon him. No apprehension has been

shown by the Public Prosecutor that if the petitioner is released on

bail he will flee from justice and will not be available for trial.

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 application under Section 439

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

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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 113-Mamta/-

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