Rajasthan High Court - Jodhpur

Mundara @ Ranjeet vs State Of Rajasthan (2025:Rj-Jd:6173) on 30 January, 2025

Author: Farjand Ali

Bench: Farjand Ali

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          HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
      S.B. Criminal Miscellaneous Bail Application No. 1351/2025

 Mundara @ Ranjeet S/o Goma Banjara, Aged About 34 Years, R/
 o Ratanpuriya, P.s. Javad, Dist. Neemuch, Mp (Lodged In Dist.
 Jail, Chittorgarh)
                                                                      ----Petitioner
                                       Versus
 State Of Rajasthan, Through Pp
                                                                    ----Respondent


For Petitioner(s)             :    Mr. B.R. Bishnoi
For Respondent(s)             :    Mr. Vikram Rajpurohit, Dy.G.A.



                  HON'BLE MR. JUSTICE FARJAND ALI

Order

30/01/2025

1. The jurisdiction of this Court has been invoked by way of

filing an application under Section 439 Cr.P.C. at the instance

of accused-petitioner. The requisite details of the matter are

tabulated herein below:

S.No.                         Particulars of the Case

     2.    Concerned Police Station                    Nimbahera
     3.    District                                   Chittorgarh
     4.    Offences alleged in the FIR                  Under Sections 8/15 &
                                                           8/29 of the NDPS Act
     5.    Offences added, if any                      --
     6.    Date of passing of impugned 28.01.2025
               order

2. 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 no factors at play in

the case at hand that may work against grant of bail to the

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accused-petitioner and he has been made an accused based

on conjectures and surmises.

3. 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.

4. Keeping trust upon the words of learned counsel for the

petitioner Shri B.R. Bishnoi, to the effect that the petitioner

has surrendered and has been taken into custody, the bail

application is entertained.

5. I Have considered the submissions made by both the parties

and have perused the material available on record.

6. The petitioner has been impleaded in this case on the basis of

statement of co-accused Gopal S/o Heera Lal Chandel

Banjara, who has already been enlarged on bail by this Court

vide order dated 20.03.2024. The relevant portion of the said

bail is reproduced hereinbelow:-

6. It is the case of the prosecution that on 28.10.2022, the Sub-Inspector Ashwini Kumar during 'nakabandi' stopped a Motorcycle upon which one person fled away from the spot and the petitioner got apprehended. The prosecution claims that the petitioner was having a nexus with Container which was coming on the same road behind them. The time gap of interval between the petitioner's Motcorcycle and coming of the container at the spot subsequently is not reflecting from the record.

Actually, it is not comprehensible that how much time after apprehension of the petitioner, the another vehicle (Container) came at the spot. A total weight of 20 Quintals 2Kg 100 gms poppy husk came to be recovered

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from the container which was carrying by accused Karan S/o Laxman Singh. Admittedly, nothing incriminating came to be recovered from the petitioner. No nexus could have been established between the petitioner and the driver of the container from which the contraband got recovered. Besides the above, it is noticed that there is a total non-compliance of Section 42 of the NDPS Act. The recovery was made after Sunset and before the sunrise. No warrant or report is there on record to this effect. As per the S.O. issued by the Government Of India in the Year 1986, the Sub-Inspectors of police, who are posted as SHO only are authorized to make search and seizure under the NDPS Act. Admittedly, at the relevant point of time, Police Inspector Phool Chand was a posted SHO of the Police Station Nimbhera, District Chittorgarh and the Sub-Inspector Ashwini Kumar was under his subordination. The police station was around 5 Kms. away from the spot and the office of the Dy.S.P., called as Circle Officer, is not far than 1½ Kms to the police station, however, no endeavor was made to call the senior police officer(s) before making search and seizure of the contraband and the search was affected without obtaining due warrant. There is nothing on record to show or suggest that the Sub-Inspector Ashwini Kumar was given charge of the police station at that particular day and time.

7. A copy of daily 'Roznamcha' of the concerned police station is placed on record for perusal of the Court. On perusal of the same, the entries with regard to police activities during the intervening night of 27th/28th October 2022 were examined but nowhere from it is reflecting that either the Superintendent of Police or any other person had given the charge of the police station Nimbahera to the Sub-Inspector Ashwini Kumar so as to enable him to make search and seizure under the NDPS Act. Compliance of Section 42 is required to be done mandatorily. Admittedly, no notice under Section 50 of

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the NDPS Act was given to the petitioner which was otherwise mandatory to be given before making search. In this regard, Honb'le the Supreme has passed a judgment in the case of Vijaysinh Chandubha Jadeja Vs. State of Gujarat reported in AIR 2011 SC 77. This court has also passed a detailed order dated 09.11.2023 in this regard in S.B. Criminal Misc. II Bail Application No. 3678/2023 titled Satyanarayan @ Sattu S/o Jeetmal Jat Vs. State of Rajasthan; the relevant portion of the order is reproduced as under:-

"7. 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.

8. 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 '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.

9. 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

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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."

8. 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.

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

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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.

9. 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 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. This Court though is not deciding the legal issue finally with regard to compliance or non- compliance of Section 42 of the NDPS Act as doing so would mean influencing the trial Court but could not desist itself from granting bail to the petitioner particularly on the ground that he was not sitting in the vehicle wherefrom recovery of contraband has been affected. Even the prosecution has not been satisfactorily convinced any nexus between him and the driver of the container.

10. Moving on to the impediments contained under Section 37 of the NDPS Act, it is considered relevant to refer to the recent ruling passed by Hon'ble the Supreme Court in Mohd Muslim @ Hussain V. State (NCT OF DELHI)1 wherein while discussing the parameters of Section 37 of the NDPS Act, it was held that the provision cannot be construed in a manner that would render the grant of bail impossible. The accused-appellant in the aforementioned case was directed to be enlarged on bail looking to the long period of incarceration. The paragraphs of Mohd. Muslim @ Hussain (supra) relevant to the present matter are reproduced below:

"18. The conditions which courts have to be cognizant of

are that there are reasonable grounds for believing that the accused

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is "not guilty of such offence" and that he is not likely to commit

any offence while on bail. What is meant by "not guilty" when all

the evidence is not before the court? It can only be a prima facie

determination. That places the court's discretion within a very

narrow margin. Given the mandate of the general law on bails

(Sections 436, 1 Special Leave Petition (CRL.) NO(S). 915 of 2023,

decided on 28.03.2023. 437 and 439, CrPC) which classify

offences based on their gravity, and instruct that certain serious

crimes have to be dealt with differently while considering bail

applications, the additional condition that the court should be

satisfied that the accused (who is in law presumed to be innocent)

is not guilty, has to be interpreted reasonably. Further the

classification of offences under Special Acts (NDPS Act, etc.),

which apply over and above the ordinary bail conditions required

to be assessed by courts, require that the court records its

satisfaction that the accused might not be guilty of the offence and

that upon release, they are not likely to commit any offence. These

two conditions have the effect of overshadowing other conditions.

In cases where bail is sought, the court assesses the material on

record such as the nature of the offence, likelihood of the accused

co-operating with the investigation, not fleeing from justice: even

in serious offences like murder, kidnapping, rape, etc. On the other

hand, the court in these cases under such special Acts, have to

address itself principally on two facts: likely guilt of the accused

and the likelihood of them not committing any offence upon release.

This court has generally upheld such conditions on the ground that

liberty of such citizens have to - in cases when accused of offences

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enacted under special laws - be balanced against the public

interest.

19. A plain and literal interpretation of the conditions under

Section 37 (i.e., that Court should be satisfied that the accused is

not guilty and would not commit any offence) would effectively

exclude grant of bail altogether, resulting in punitive detention and

unsanctioned preventive detention as well. Therefore, the only

manner in which such special conditions as enacted under Section

37 can be considered within constitutional parameters is where the

court is reasonably satisfied on a prima facie look at the material

on record (whenever the bail application is made) that the accused

is not guilty. Any other interpretation, would result in complete

denial of the bail to a person accused of offences such as those

enacted under Section 37 of the NDPS Act."

(Emphasis Supplied)

7. In Rabi Prakash Vs. State of Odisha passed in Special leave to Appeal (Crl.) No.(s) 4169/2023, Hon'ble the Apex Court has again passed an order dated 13th July, 2023 dealing this issue and has held that the provisional liberty(bail) overrides the prescribed impediment in the statute under Section 37 of the NDPS Act as liberty directly hits one of the most precious fundamental rights envisaged in the Constitution, that is, the right to life and personal liberty contained in Article

21.

12. At the stage of hearing of a bail plea pending trial, although this Court is not supposed to make any definite opinion or observation with regard to the discrepancy and legal defect appearing in the case of prosecution as the same may put a serious dent on the State's case yet at the same time, this Court can not shut its eye towards the non-compliance of the mandatory provision, more

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than one and half years of incarceration pending trial, failure of compliance with the procedure of sampling and seizure and the serious issue of competence of seizure officer. In the case of Mohd. Muslim @ Hussain Vs. State (NCT of Delhi) passed by Hon'ble the Supreme Court in Special Leave Petition (Crl.) No.915 of 2023 vide order dated 28.03.2023, it has been propounded that at the stage of hearing a bail application under Section 439 Cr.P.C., although it is not possible to make a definite opinion that he is not guilty of the alleged crime but for the limited purpose for the justifiable disposal of the bail application, a tentative opinion can be formed that the material brought on record is not sufficient enough to attract the embargo contained under Section 37 of the NDPS Act. Though specific arguments have not been conveyed but looking to the fact that the accused is in custody, this court feels that the accused is not supposed to establish a case in support of his innocence rather his detention is required to be justified at the instance of the prosecution, therefore, this court went deep into the facts of the case and the manner in which the entire proceedings have been undertaken. If other surrounding factors align in consonance with the statutory stipulations, the personal liberty of an individual can not encroached upon by keeping him behind the bars for an indefinite period of time pending trial. In view of the above, it is deemed suitable to grant the benefit of bail to the petitioner in the present matter. 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.

7. In view of the above and on the ground of parity as well as

considering the fact that there is high probability that the trial

may take long time to conclude, it is deemed suitable to

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grant the benefit of bail to the petitioner in the present

matter.

8. Accordingly, the instant bail application under Section 439

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

as named in the cause title 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