Rajasthan High Court - Jodhpur
State Of Rajasthan vs Mittu Singh (2025:Rj-Jd:20860) on 23 April, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:20860]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Crml Leave To Appeal No. 189/2024
State Of Rajasthan, Through Pp
----Appellant
Versus
Mittu Singh S/o Moti Singh, Aged About 24 Years, R/o 24 Meel
Rawji Ka Talab, P.s. Bheem, Dist. Rajsamand.
----Respondent
For Appellant(s) : Mr. Sri Ram Choudhary, AGA
For Respondent(s) : Mr. Vikram Singh Jaitawat
HON'BLE MR. JUSTICE FARJAND ALI
Order
23/04/2025
1. The instant Leave to Appeal filed by the State is directed
against the judgment dated 11.09.2023, passed by the learned
Special Judge, NDPS Act cases-cum-Additional Sessions Judge,
Rajsamand, in NDPS Case No.70/2022, whereby the learned
Judge acquitted the accused respondent from the charges.
2. Bereft of elaborated details, the facts of the case, briefly stated,
are as follows: On 02.10.2016, PW-9 Lachchi Ram, Sub-Inspector
of Police at Police Station Bheem, apprehended the accused
respondent for having a plastic bag in his hand. A search was
conducted, and 4 kg of poppy husk was found in the bag. The
accused was arrested, a seizure of the contraband was made, and
subsequently, an FIR was lodged. The investigation commenced
and was concluded, and accordingly, the respondent was charged
with committing an offence under Section 8 read with Section 15
[2025:RJ-JD:20860] (2 of 4) [CRLLA-189/2024]
of the NDPS Act. 13 witnesses were examined for the prosecution,
and 22 judgments were tendered into evidence to substantiate the
charge. The accused was examined under Section 313 of the
Cr.P.C., after which the parties were heard. The learned Trial Court
acquitted the accused on the grounds of non-compliance with the
mandatory provisions.
2.1. It is an admitted fact that the seizure was made by PW-1
Amar Singh and PW-9 Lachchi Ram. Neither of them were officers
authorized to effect search and seizure under the NDPS Act, as, at
the relevant time, one Brijesh Kumar was posted as SHO of Police
Station Bheem. Neither PW-9 Lachchi Ram was posted as SHO,
nor has any document been produced to show his action in the
capacity of a Station House Officer. 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.
A review of SO No.1/1986 issued by the Government of India
makes it abundantly clear that only Sub-Inspectors posted as SHO
[2025:RJ-JD:20860] (3 of 4) [CRLLA-189/2024]
at certain police stations have the authorization to conduct search
and seizure, but with the specific stipulation that they must be
posted as SHO. In the present case, this condition was not met, as
the Seizing Officer, who was a Sub-Inspector, was not posted as
the SHO, and it is admitted that PW-9 Lachchi Ram was not
posted as SHO. Therefore, he was not a competent officer to
effect the search and seizure under the NDPS Act. 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.
17. To the same effect is the view expressed by this
Court in State of Punjab v. Balbir Singh 1994 (i) SCC 299.
In para 13 Jayachandra Reddy, J. speaking for the Court
observed thus:
Therefore, if an arrest or search contemplated
under Sections 41 and 42 is made under a warrant issued
by any other Magistrate or is made by any officer not
empowered or authorised, it would per se be illegal and
[2025:RJ-JD:20860] (4 of 4) [CRLLA-189/2024]
would affect the prosecution case and consequently
vitiate the trial.
The State of Rajasthan has sought leave from this Court by
filing an appeal against the judgment of acquittal. If the leave is
granted, the appeal shall be taken up, and the accused would be
summoned to respond. In such a case, the fate of the case is
apparent, and granting leave to appeal while keeping the appeal
pending before this Court would be a futile exercise. Since the
actions taken in this case cannot be undone and the legal and
factual situation would remain as it is, even if the appeal is heard
after several years.
4. In view of the above, I am of the opinion that permitting the
State to file an appeal would be an exercise in futility. Thus, the
instant criminal leave to appeal, being devoid of any merit, is
hereby dismissed.
(FARJAND ALI),J
109-Mamta/-
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