Rajasthan High Court - Jodhpur

Kanhaiya Lal Keer vs State Of Rajasthan (2025:Rj-Jd:29008) on 4 July, 2025

Author: Kuldeep Mathur

Bench: Kuldeep Mathur

[2025:RJ-JD:29008]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
  S.B. Criminal Miscellaneous 3rd Bail Application No. 5817/2025

Kanhaiya Lal Keer S/o Heera Lal Keer, Aged About 30 Years, R/o
Ramnagar        Debipura       Vpo     Barundani          Police    Bigod   Tehsil
Mandalgarh District Bhilwara ()At Present Lodged In Sub Jail
Sangaria
                                                                     ----Petitioner
                                     Versus
State Of Rajasthan, Through Pp
                                                                   ----Respondent


For Petitioner(s)          :     Mr. Kailash Khilery
For Respondent(s)          :     Mr. Sri Ram Choudhary, PP



            HON'BLE MR. JUSTICE KULDEEP MATHUR

Order

04/07/2025

This third application for bail under Section 439 Cr.P.C. (483

BNSS) has been filed by the petitioner who has been arrested in

connection with F.I.R. No.697/2022, registered at Police Station

Sangriya, District Hanumangarh, for the offences punishable

under Sections 8/15 of NDPS.

Learned counsel for the petitioner submitted that the co-

accused Mangi Lal Keer (S.B. Criminal Misc. Bail Application

No.7063/2025) has already been enlarged on bail by the co-

ordinate Bench of this Court vide order dated 16.06.2025. Learned

counsel for the petitioner further submitted that the case of the

present petitioner is not at all distinguishable from that of the

above named co-accused person who has already been enlarged

on bail.

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Lastly, learned counsel for the petitioner submitted that the

petitioner is in judicial custody; the petitioner does not have any

criminal antecedents; till date, out of 24 cited prosecution

witnesses, statements of only 5 witnesses have been recorded

before the competent criminal Court and the trial of the case will

take sufficiently long time, therefore, the benefit of bail may be

granted to the accused-petitioner.

Per contra, learned Public Prosecutor has vehemently

opposed the bail application. Learned Public Prosecutor submitted

that in the present case, higher quantity of contraband (poppy

husk/ straw) was recovered from the conscious possession of the

present petitioner and, therefore looking at the seriousness of the

allegations against the present petitioner, he does not deserves to

be enlarged on bail by this Court. However, he was not in a

position to refute the fact that the above named co-accused

person has already been enlarged on bail.

Heard learned counsel for the parties at Bar. Perused the

material available on record.

The order dated 16.06.2025 passed by the co-ordinate

Bench of this Court while enlarging co-accused Mangi Lal Keer on

bail is reproduced herein below for ready reference:-

"1. The jurisdiction of this court has been invoked by way of filing the instant bail 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

   2.         Concerned Police Station                   Sangariya
   3.         District                                   Hanumangarh
   4.         Offences alleged in the FIR                Section 8/15 of the NDPS
                                                         Act



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   5.     Offences added, if any                    -
   6.     Date of passing of impugned 27.05.2025
          order

2. The concise facts of the case as alleged in the FIR are that on 26.11.2022, Shri Shailesh Chandra, SI, SHO Sangariya, Hanumangarh intercepted a Truck being driven by the petitioner and during search, 822 Kg poppy husk got recovered from the said vehicle. After search and seizure, an FIR got registered and petitioner was arrested and since then he is behind the bars. Now, around two years have lapsed, hence, the instant bail application.

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 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. Heard and considered the submissions made by both the parties and have perused the material available on record.

6. Perusal of the record revealing that the petitioner has been arrested on 26.11.2022 in connection with recovery of 822 Kg Poppy husk. The Seizure was effected by Sub-Inspector Shailesh Chandra and he admitted in his cross examination that there is no entry in the case file which pertains to any report in the Roznamcha (Daily Diary) made by him in the capacity of SHO, Police Station Sangaria. As per Notification No.1/86, only those Sub-Inspectors are competent to effect search and seizure of the contraband who are the posted SHO. Furthermore, it is revealing from the record that till date out of total 24 projected witnesses, statements of only 5 witnesses have been recorded in the trial.

6.1. As per Standing Order No. 1 of 1986, only Sub-Inspectors who are officially designated as Station House Officers are competent to carry out search and seizure under the NDPS Act. Not all Sub- Inspectors are authorised to undertake such actions. Prima facie, there is merit in the argument that the seizure in this case was made by an unauthorised officer as there was no document on record showing that the officer concerned held charge of the concerned police station at the time the search and seizure was conducted. In light of the above facts and legal inconsistencies, this Court is of the view that Section 37 of the NDPS Act would not be attracted in the instant case. 6.3. The NDPS Act is a statute comprising of stringent provisions which need to be followed in letter and in spirit and non-compliance of any stipulations specially the ones relating to the procedure followed during search, seizure and arrest, cannot be overlooked. 6.4. 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.

6.5. 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

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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.

7. 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 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

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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.

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.

11. It is nigh well settled law that at a pre-conviction stage; bail is a rule and denial from the same should be an exception. The purpose behind keeping an accused behind the bars during trial would be to secure his presence on the day of conviction so that he may receive the sentence as would be awarded to them. Otherwise, it is the rule of Crimnal Jurisprudence that he shall be presumed innocent until the guilt is proved.

12. Considering the overall facts and circumstances of the case and the fact that petitioner is behind the bars for around two and half years thus, looking to the fact that there is high probability that the trial may take long time to conclude, it is deemed suitable to grant the benefit of bail to the petitioner.

13. Accordingly, the instant bail application under Section 483 BNSS 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 concerned on all the dates of hearing as and when called upon to do so."

Having considered the rival submissions, facts and

circumstances of the case, without expressing any opinion on

merits/demerits of the case, this Court is inclined to enlarge the

petitioner on bail.

Consequently, the third bail application under Section 439

Cr.P.C. (483 BNSS) is allowed. It is ordered that the accused-

petitioner- Kanhaiya Lal Keer S/o Heera Lal Keer, arrested in

connection with F.I.R. No.697/2022, registered at Police Station

Sangriya, District Hanumangarh, shall be released on bail, if not

wanted in any other case, provided he furnishes a personal bond

of Rs.1,00,000/- and two sureties of Rs.50,000/- each, to the

satisfaction of learned trial Court, for his appearance before that