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Rajasthan High Court - Jodhpur

Kamal Dhakar vs State Of Rajasthan (2025:Rj-Jd:52353) on 4 December, 2025

Author: Sudesh Bansal

Bench: Sudesh Bansal

[2025:RJ-JD:52353]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
 S.B. Criminal Miscellaneous Bail Application No. 891/2025

Kamal Dhakar S/o Ashok Dhakar, Aged About 22 Years, R/o
Kanjharda, P.s. And Tehsil Manasa, Dist Neemach, M.p. (At
Present Lodged In Dist Jail Bhilwara)
                                                                         ----Petitioner
                                         Versus
The Union of India
                                                                       ----Respondent


For Petitioner(s)              :     Mr. Deepak Menaria
                                     Mr. Naresh Khatri
For Respondent(s)              :     Mr. K.S. Nahar, Sp. PP for CBN with
                                     Mr. Gopal Singh Shekhwat



             HON'BLE MR. JUSTICE SUDESH BANSAL

Order

04/12/2025

1. Heard counsel for petitioner as well as learned Special Public

Prosecutor appearing for CBN and perused the material available

on record.

2. Instant bail application has been filed by petitioner under

Section 483 of BNSS in connection with FIR No.

36/2023/CBN/NMH, Deputy Narcotics Commissioner, Neemach

(Madhya Pradesh) for offence under Section 8/18(b) of NDPS Act.

3. Counsel for petitioner pointed out that petitioner alongwith

other persons, namely, Sanwarmal and Kamal Dhakar, were

intercepted on 19.08.2023 and from their bike, 4.100 Kgs. Opium

was recovered and on the same date, i.e., 19.08.2023, all three

accused were arrested. It has been pointed out that after

investigation, charge-sheet has been filed and till date, trial has

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not been concluded. It has been pointed out that the Coordinate

Bench of this Court, after considering the procedural and legal

lapses in conducting the seizure procedure of contraband, nearly

111 Kms away from the actual place of recovery and taking into

consideration the order dated 21.10.2024 passed in case of

Dharmendra Singh Vs. Union of Inda through CBN; SB

Criminal Misc. Third Bail Application No.13299/2024, vide a

detailed order dated 17.09.2025, has released co-accused- Heera

Lal Jat on bail.

4. Counsel for petitioner submits that the case of petitioner, on

such aspects, stands on parity with that of co-accused Heera Lal

Jat and petitioner is also entitled to be released on bail.

5. Learned Special Public Prosecutor, though, has opposed the

bail application, however, not in a position to controvert the

release of co-accused Heera Lal Jat, vide order dated 17.09.2025,

passed after hearing Special Public Prosecutor.

6. For ready reference, relevant portion of the order dated

17.09.2025, is being reproduced hereunder:-

"5. Have considered the submissions made by both the partiesand have perused the material available on record.

5.1. Upon careful consideration of the deposition of P.W.1 Viveek Bairwa, Sub-Inspector, CBN, Neemuch, it stands admitted that the seizure proceedings were conducted at the CBN office, Neemuch, situated nearly 111 kilometres away from the actual place of recovery. The officer, who is present before this Court today, has been confronted, and he unequivocally accepts that the seizure was not effected at the spot of interception. The justification sought to be advanced by him for such a departure from the settled procedure appears wholly unsatisfactory and cannot be considered adequate to justify the continued incarceration of the petitioners during trial. 5.2. The record further reveals, and the seizure memo corroborates, that the process of seizure and sealing was undertaken not at the place where the contraband was initially intercepted and the accused apprehended, but at the distant office of the CBN, Neemuch. In the present case, the contraband was recovered at the Bhilwara-Kota Highway, whereas the search and seizure proceedings were conducted subsequently at another place, namely, the office of the CBN, Neemuch. This procedure is not recognized by law. As per the mandate of law, once a vehicle is intercepted, the search is required to be made then

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and there at the spot of interception, and in the event any incriminating material is found, it must be seized immediately and all contemporaneous memos prepared at the same place. Departure from this statutory requirement is permissible only upon demonstration of cogent and compelling circumstances, which are conspicuously absent in the present matter.

5.3. Neither the Sub-Inspector nor any member of the raiding team has furnished a cogent explanation as to why the legally mandated formalities were not observed contemporaneously atthe spot of recovery. This Court finds it particularly concerning that once the contraband had already been recovered and the accused placed under arrest at the place of interception, the formal seizure proceedings were deferred and undertaken elsewhere after considerable lapse of time and distance.

5.4. Such a course of conduct renders the seizure/recovery memo vulnerable to the inference that it was reduced to a mere paper formality at a place of administrative convenience rather than in strict compliance with statutory safeguards. The aforesaid lapses on the part of the officers, therefore, gravely undermine the authenticity and sanctity of the seizure proceedings, thereby casting serious doubt upon the evidentiary value of the recovery itself.

6. This Court in the case of Dharmendra Singh v. Union OfIndia, Through CBN (S.B. Criminal Misc. Third BailApplication No. 13299/2024) has elaborately discussed such procedural lapses. For ready reference, the relevant paragraphs of the judgment are reproduced herein below:-

"6. The present is a case in which the officers of Central Bureau of Narcotics, District Chittorgarh, State Rajasthan proceeded to make search and seizure of an offencecommitted at Village Dhakadi, Tehsil Malhargarh, District Mandsore in the State of Madhya Pradesh.

7. It is the case of the prosecution that upon receiving a secret information on 06.01.2024, a joint preventive team from the CBN proceeded to the place of the petitioner and conducted a search of his house, where around 11 quintals of poppy husk came to be recovered and seized as per the usual course of investigation, as it is claimed by the officers. The petitioner came to be arrested for having in possession of poppy husk in commercial quantity.

8. The glaring defect of the case as pointed out by the defence is that the offence was committed within the State of M.P. at Mandsore but the seizure was reported in the State of Rajasthan at District Chittorgarh and charge-sheet has also been submitted in the Court of Special Judge, NDPS Act Cases, Chittorgarh, which has no jurisdiction to try or inquire the case as it falls outside its territorial jurisdiction.

9. A further plea has also been raised that as per the Recovery Memo, though the contraband was taken from the house of the petitioner situated in the State of M.P., but the same was taken to the Office of CBN, District Chittorgarh in the State of Rajasthan, where the entire process of seizure was affected and which is not permissible in the law.

10. In this view of the matter, this Court has observed that a bare look on the papers revealing that the team of CBN, District Chittorgarh went to make a search at the petitioner's house, which is around 80-90 kms away from Chittorgarh and falls within the territorial jurisdiction of District Mandsore in the State of Madhya Pradesh. Of course, the respondent is a Central Agency and it has an authority to make search and seizure at any place within its authorized areas but at the same time, this legal plea cannot be

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ignored that the alleged offence was committed somewhere in the State of M.P. and ordinarily, the place of inquiry and trial, as per Section 177 of the Code of Criminal Procedure, would be the place where the crime was committed and search was affected. It is an admitted fact situation that the place of recovery is situated in the District Mandsore of State of M.P. and ordinary place of trial of such case would be the Special Judge functioning at District Mandsore in the State of M.P.

11. For ready reference, Section 177 of Cr.P.C. is reproduced herein under:-

177.Ordinary place of inquiry and trial.

Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.

11.1 A bare perusal of the above, making it abundantly clear that an inquiry or trial in relation to an offence shall only be conducted by a Court within whose local jurisdiction the offence was committed. Indisputably, the offence was committed somewhere in the State of M.P. and the Special Judge, NDPS Act Cases, Chittorgarh will have no jurisdiction to try the accused. There is no bar if the trial of the case be sent to a Court of competent jurisdiction but in any case, the Special Judge, NDPS Act Cases, Chittorgarh has no jurisdiction to make a further order of remand or to try the case and has no authority to take cognizance of the offence and to proceed further in the matter.

11.2 The same view has been taken in the case of Dashrath Rupsingh Rathod v. State of Maharashtra passed by Hon'ble the Supreme Court reported in AIR 2014 (4) SC 3519 and in Y. Abraham Ajith and Ors. v.Inspector of Police, Chennaiand Ors. reported in AIR 2004 SC 4286, wherein it has been observed that in criminal cases, Section 177 of CrPC is in reference to the local jurisdiction where the offence is committed and territorial jurisdiction is restricted to the Court within whose local jurisdiction the offence was committed.

12. Another glaring aspect of the case is that the alleged poppy husk was found in petitioner's house situated at Village Dhakadi, Tehsil Malhargarh, District Mandsore in the State of Madhya Pradesh, however, no Seizure Memo was prepared at the place from where it was recovered; rather, weird process had been adopted by taking the contraband to the Office of CBN, District Chittorgarh in the State of Rajasthan, which is around 80-90 kms far away from the place of recovery. The passing of remand order, judicial custody remand and taking cognizance of the offence without having authority and outside the territorial jurisdiction by the Special Judge, NDPS Act Cases, Chittorgarh, is illegal. There is high probability that the trial may take long time to conclude. In light of these facts and circumstances, it is deemed suitable to grant the benefit of bail to the petitioner in the present matter.

13. The role of the magistrate under section 157 CrPC is also limited to the point that an officer in-charge of a police station shall forthwith send a report to such magistrate who is empowered to take cognizance in the matter if he has reason to suspect that a cognizable offence (which he is empowered to investigate under Section 156) has been committed. This provision has been made just with a view to ensure equitableness so that the police or any other investigating agency may not make any undue interference and the exact time of FIR as well as the wordings used in respect of nature of accusation, name of accused, place of incident etc. remains unchanged. It leaves no crevice open for adulteration to creep in and here, the Magistrate has nothing to do as such. If the place of incident itself is outside the jurisdiction, then how it can be taken cognizance of and how equitableness can be maintained. For ready reference Section 157 is being reproduced asunder:-

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"157. Procedure of investigation.

(1) If, from information received or otherwise, an officer-in-charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender:

Provided that -

(a)when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer-in-charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;

(b) if it appears to the officer-in-charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. [Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.] [Inserted by the Code of Criminal Procedure(Amendment) Act, 2008 (5 of 2009), Section 11.] (2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the officer-in-charge of the police station shall state in his report his reasons for not fully complying with the requirements of that sub-section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated.

14. This Court is of the firm view that unless availability of special circumstances, the things are required to be seized at the same place where from it is recovered because taking away the contraband from a place and then affecting procedure of seizure at a suitable place of the Officer makes the recovery doubtful and so also the same loses its sanctity.

15. Dealing with the aforesaid aspect, this Court has passedan order dated 08.05.2024 in SBCRLMB No.5457/2024(Major Singh Vs. State of Rajasthan) while observing asunder:-

'13. The admission made by the above witnesses has put a serious dent on the story of the prosecution to the effect that a vehicle was intercepted by the police at a particular place and time and certain quantity of contraband got recovered from it. In order to sanctify the search and seizure of contraband, it was expected from the Seizure Officer to prepare the memos at the crime place that too in the presence of the independent witnesses if available nearby the place. Present is a case where several persons were available at or nearby the crime place but not a single independent witness has corroborated the factum of recovery memo. Taking of the vehicle and the accused from the crime scene to the police station and then preparation of memos within the close precinct of the police station, as per their convenience has lost the sanctity of the search and seizure. Law requires that if certain thing is recovered at a particular place on the given time then the memos should be prepared at the same place in the presence of witnesses and accused. Although, it is prima face and tentative opinion of this Court only for the purpose of justifiable disposal of the bail application.

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14. Discussing the above circumstance, this Court has taken a view in SBCRLMB No.11544/2023 titled as Kamlesh Kumar Vs. Union of India decided on 30.10.2023. The relevant part is reproduced as under:

'5.Have considered the submissions made by both the parties and have perused the material available on record. The circumstances created by the Police team in this matter brings the recovery into doubt. The statement of the seizing officer recorded under Section 164 of Cr.P.C. reveals that the process of seizure was conducted at the Officeof Superintendent CBN, Neemach instead of the place where the recovery took place and the same is corroborated by the Panchnama Japti. He 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. It is not comprehensible as to what was the need to conduct the seizure at a place located 20-25 kms away from the place where the vehicle was intercepted; that too, at the premises of Office of Superintendent CBN, Neemach and no reasonable explanation has been furnished for the same. When the actual recovery had already been made and search and seizure had already been conducted at the shop and warehouse of the petitioner beforehand, then why was the memo regarding the same prepared after a significant period of time had passed at another place (CBN, Neemach) making it seem as if seizure/recovery memo can be prepared as a paper formality whenever it is convenient when the actual, physical recovery had been made at a different place, thus, watering down the sanctity of seizure/recovery memo.

15.The credibility of the seizure memo looses significance if the thing is recovered at a distant place and it is taken by the police from the crime scene to the police station and then memos got prepared in the police station. If it is allowed then why not in every case the things may be taken from the crime scene and wherefter, the entire proceeding be undertaken in the premises of police station and then why not in every case the accused can be detained from any place and whereafter his/her/their memo of arrest be prepared in the police station. This Court is of the view that if anything or any incriminating material is collected or recovered from a particular place and at a particular time then the seizure memo/recovery memo should have been prepared at the same place and that too in the presence of the witnesses of the same locality. A slight departure or deviation can be permitted in case when no other person is available to verify the fact of recovery at the crime scene then the members of the police party can be made witness of the fact of recovery. In certain circumstances, when there is heavy rain or there is heavy traffic on the highway or other like situation, in that cases also, the seizure memo can be prepared at a nearby place so that the proceedings can be undertaken calmly or safely.

However, it is not permissible for a police officer to pick the contraband from a particular place then carry with him to the police station which is situated at a far place and whereafter prepare the seizure memo in the police station premises. The moment this kind of practice is permitted; the day is not far when there would be a trait that the police officers will claim that though the memos were prepared in the police station but the things were recovered from a different place. In that situation, the purity, originality, genuineness and virtuousness would be lost and at the same time, there would be serious aspersions regarding fairness and genuineness offactum of seizure."

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7. Applying the principle of parity and incarceration period of

petitioner i.e. from 19.08.2023 as also the fact that petitioner

does not have any criminal antecedent, but without commenting

on merits/ de-merits of the case, this Court deems it just and

proper to release the present petitioner on bail.

8. Accordingly, the bail application is allowed and it is ordered

that the accused-petitioner Kamal Dhakar S/o Ashok Dhakar

shall be released 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