Rajasthan High Court - Jodhpur
Brijesh vs State Of Rajasthan (2025:Rj-Jd:9733) on 18 February, 2025
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2025:RJ-JD:9733]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 12305/2024
1. Brijesh S/o Ramesh Harijan, Aged About 35 Years, R/o
Village Kunwakheda, Ps Jawada, Teh. Rawatbhata, Dist.
Chittorgarh. (Lodged In Dist. Jail Chittorgarh.)
2. Dayaram S/o Hazarilal Harijan, Aged About 56 Years, R/o
Q Type, Ghandhisagar, Ps Gandhi Sagar, Dist. Mandsaur,
Mp. (Lodged In Dist. Jail Chittorgarh.)
----Petitioners
Versus
State of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Shekhar Mewara
For Respondent(s) : Mr. Shrawan Singh Rathore, PP
HON'BLE MR. JUSTICE KULDEEP MATHUR
ORDER
18/02/2025
1. This application for has been filed by the petitioners under
Section 483 BNSS who have been arrested in connection with FIR
No.36/2023 registered at Police Station Jawda, District Chittorgarh
for the offence punishable under Section 8/15 of the NDPS Act.
2. As per the prosecution, on 29.08.2023, the SHO of Police
Station Jawda, during routine nakabandi flagged down one loading
tempo bearing registration No.RJ-20-GA-8916. On a search being
made of the aforesaid vehicle, contraband (poppy husk/straw)
weighing 338 kilograms was found hidden beneath the bags in
which tarpaulin was kept. The petitioners were found sitting on the
passenger seat of the offending vehicle and they were
apprehended on the spot.
[2025:RJ-JD:9733] (2 of 5) [CRLMB-12305/2024]
The petitioners divulged an information under Section 27 of
the Indian Evidence Act that they had procured the recovered
contraband from the co-accused Mahendra @ Member Banjara.
Later on, the petitioners had also identified the house of the co-
accused Mahendra @ Member Banjara, from where they allegedly
procured the recovered contraband.
3. Learned counsel for the petitioners contends that the
petitioners have been falsely implicated in the present case. He
submits that the petitioners were mere loaders/dockworkers and
they had no knowledge about the fact that contraband being
transported in the offending vehicle.
4. Learned counsel further submits that though admittedly the
contraband was recovered from the conscious possession of the
present petitioners but the entire search and seizure proceedings
are in violation of Sections 42(1) and 52-A of the NDPS as Shri
Kamalchand who carried out the search and seizure proceeding
was not holding the position of SHO of Police Station Jawda but
was only an acting Station House Officer that also in the non-
presence of a magistrate, therefore, he could not exercise the
powers under Section 42 of NDPS Act and thus the whole
proceedings are vitiated.
5. It was also submitted by the learned counsel that a perusal
of the seizure memo would indicate that the seizure officer had
not collected separate samples from each bag of the contraband
poppy husk/straw, therefore, the same is not in conformity with
the Standing Instruction No.1/88 issued by the Narcotics Control
Bureau, New Delhi.
[2025:RJ-JD:9733] (3 of 5) [CRLMB-12305/2024]
6. Lastly, learned counsel submits that the petitioners are
judicial custody since last more than one year and six months and
delay in trial is not at all attributable to him. Therefore, the benefit
of bail may be granted to the accused-petitioners.
7. Per Contra, learned Public Prosecutor has vehemently and
fervently opposed the bail application and submitted that huge
quantity of contraband (poppy husk/straw) has been recovered
from the conscious possession of the present petitioners,
therefore, looking to the seriousness of the offence allegedly
committed by the petitioners, they do not deserve to be enlarged
on bail.
8. Heard.
9. After carefully scanning the material available on record and
considering the facts and circumstances of the case, this Court
prima facie finds that contraband (poppy husk/straw) weighing
338 kilograms was recovered from the conscious possession of the
present petitioners. Having regard to such a huge quantity of
contraband being transported in the offending vehicle, this Court
finds it hard to believe that the petitioners were not aware about
the contents of the consignment being transported in the
offending vehicle. From a perusal of the statements of Shri
Kamalchand, SHO of Police Station Jawda (Seizure Officer)
recorded before the competent criminal court as P.W.-1, this Court
prima facie finds that though the learned counsel for the
petitioners has raised an argument for violation of Standing
Instruction No.1/88 issued by the Narcotics Control Bureau, New
Delhi, however, in the examination-in-chief and cross-examination
[2025:RJ-JD:9733] (4 of 5) [CRLMB-12305/2024]
of the seizure officer, no question has been put to him to verify the
credibility of the samples collected.
10. In the considered opinion of this Court, the provisions of
Section 42 of the NDPS Act would only apply where any specific
information has been received about the Narcotic Drug, or
Psychotropic substance, or Control substance in respect of which
an offence punishable under the NDPS Act has been committed. In
the present case, as noticed above, at the time when the SHO of
Police Station Jawda suspected that contraband is being
transported in the offending vehicle, the said vehicle was 'in
transit' and therefore, the provisions of Section 42 of the NDPS
Act would not apply in the present case. This Court is conscious of
the judgment rendered in the case of Union of India through
Narcotics Bureau, Lucknow vs. Mohd. Nawaz Khan reported
in 2021 (10) SCC 100, wherein the Hon'ble Apex Court was
pleased to hold that the question with regard to non-compliance of
Section 42 of NDPS Act is the one which should be raised in the
course of trial. This Court also prima facie finds that non-
compliance of Section 52-A of the NDPS Act cannot solely be a
ground for grant of bail particularly when a huge quantity of
contraband has been recovered from the conscious possession of
the petitioners as held by the Hon'ble Supreme Court in the case
of Narcotics Control Bureau Vs. Kashif (Criminal Appeal No.
5544 of 2024 @ SLP (Crl.) No. 12120 of 2024). It is a
question which needs to be decided during the course of trial after
considering all the evidence produced before it.
11. In view of the observations made hereinabove, this Court is
not inclined to enlarge the petitioners on bail.
[2025:RJ-JD:9733] (5 of 5) [CRLMB-12305/2024]
12. Resultantly, the present bail application filed under Section
483 BNSS is dismissed.
13. However, it is made clear that the findings
recorded/observations made above are strictly for adjudication of
present bail application and the trial court shall not get prejudiced
by the same.
(KULDEEP MATHUR),J
107-himanshu/-
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