Rajasthan High Court - Jodhpur

Mangi Lal Keer vs State Of Rajasthan (2025:Rj-Jd:27252) on 16 June, 2025

Author: Farjand Ali

Bench: Farjand Ali

[2025:RJ-JD:27252]

          HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
     S.B. Criminal Miscellaneous Bail Application No. 7063/2025

Mangi Lal Keer S/o Nand Lal Keer @ Nandakeer, Aged About 32
Years, R/o Ramnagar Debipura Vpo Barundani, Ps 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. Surendra Bishnoi, AGA
                                   Mr. K.S. Champawat



                 HON'BLE MR. JUSTICE FARJAND ALI

Order

16/06/2025

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
     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,

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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

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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

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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.

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.

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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 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.

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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