Rajasthan High Court - Jodhpur

Kishore Kumar vs Union Of India (2025:Rj-Jd:46185) on 17 October, 2025

Author: Farjand Ali

Bench: Farjand Ali

[2025:RJ-JD:46185]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 5th Bail Application No. 10645/2025

Kishore Kumar S/o Rameshwar, Aged About 43 Years, R/o
Semarda P.s. Chhoti Sadri, District Pratapgarh (At Present
Lodged In District Pratapgarh).
----Petitioner
Versus
Union Of India, Through Cbn
----Respondent

For Petitioner(s) : Mr. Anand Purohit, Sr. Advocate
assisted by Mr. Kailash Khillery
For Respondent(s) : Mr.K.S. Nahar, Spl. PP
Mr. Nathu Singh

HON'BLE MR. JUSTICE FARJAND ALI

Order

17/10/2025
1. The jurisdiction of this Court has been invoked by way of

filing an application under Section 439 Cr.P.C./483 BNSS at the

instance of accused-petitioner. The requisite details of the

matter are tabulated herein below:

S.No. Particulars of the Case
1. Crime/Complaint Number 8/2023
2. Concerned Police Station CBN, Kota
3. District Kota
4. Offences alleged in the Complaint Section8/18 of NDPS
Act
5. Offences added, if any -
6. Date of passing of impugned order 08.10.2024

2. The brief factual matrix of the case reveals that on

05.07.2023, upon receiving credible information from an

informant, Inspector Pankaj Kumar of the Central Bureau of

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Narcotics, Kota, constituted a preventive team to conduct a search

operation. Acting on the said information, Sub-Inspector

Anandpal, accompanied by the preventive team, proceeded to the

residential premises of the petitioner-accused Kishore Kumar,

situated at House No. 19, Rajput Mohalla, Pahadi Dalan, Semarda.

Upon knocking at the door, a person emerged from the premises,

who, upon inquiry, disclosed his identity as Kishore Kumar, the

present petitioner-accused.

2.1. A search of the accused's residence was carried out by Sub-

Inspector Anandpal, during which, in the store room located

beneath the staircase on the right side of the house, and adjacent

to the wall outside, several gunny bags were found stacked. Upon

inspection, these bags were found to contain doda chura (poppy

husk). For security and procedural purposes, the recovered

material was transported to the Central Narcotics Office,

Pratapgarh, by a pickup vehicle. On counting, a total of 29 gunny

bags filled with doda chura were found, weighing 607 kilograms

(including the sacks).

2.2. Consequently, necessary proceedings were undertaken, and

the petitioner-accused Kishore Kumar was arrested on 05.07.2023

for offences under Section 8/15(c) of the Narcotic Drugs and

Psychotropic Substances Act, 1985. Upon completion of

investigation, finding sufficient evidence, a charge sheet was filed

against him. Formal charges under Section 8/15(c) of the NDPS

Act were framed, and the case is presently pending trial at the

stage of prosecution evidence. The petitioner's 4th bail application,

registered as SBCRLMB No.1802/2025, was dismissed as by this

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Court vide order dated 25.07.2025. The instant bail application

has therefore been filed.

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 Special Public Prosecutor opposes the bail

application and submits that the present case is not fit for

enlargement of accused on bail.

5. I have considered the submissions made by the parties and

have perused the material available on record.

6. Upon consideration of the record and the rival submissions,

the following observations emerge:

6.1 It transpires from the material on record that the present

case emanates from a search and seizure operation undertaken by

the officers of the Central Bureau of Narcotics, District Kota,

pursuant to credible intelligence received by Inspector Pankaj

Kumar. Acting upon the said information, a preventive team was

duly constituted, and Sub-Inspector Anandpal, accompanied by

the said team, proceeded to the residential premises of the

petitioner-accused Kishore Kumar, situated at House No. 19,

Rajput Mohalla, Pahadi Dalan, Semarda. Upon knocking at the

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door, an individual emerged who, upon inquiry, identified himself

as Kishore Kumar, the present petitioner-accused.

6.2 A search of the premises was thereafter conducted by Sub-

Inspector Anandpal, during which several gunny bags were found

stored beneath the staircase on the right-hand side of the house

and alongside the exterior wall. Upon inspection, the bags were

found to contain doda chura (poppy husk). For reasons of security

and procedural propriety, the recovered material was transported

by pickup vehicle to the Central Narcotics Office, Pratapgarh. Upon

enumeration, a total of twenty-nine gunny bags filled with doda

chura were found, cumulatively weighing 607 kilograms (inclusive

of the sacks). Consequent to the recovery, the petitioner was

apprehended for the alleged offence under Section 8/15(c) of the

NDPS Act.

6.3 However, upon an analytical scrutiny of the record, this Court

finds considerable force in the submissions advanced on behalf of

the defence, which assail the prosecution's case on the ground of

jurisdictional and procedural improprieties. It has been urged, and

prima facie appears, that while the alleged recovery was effected

within the territorial limits of Chhoti Sadari, the seizure

proceedings were formally registered and reported at the

Pratapgarh Office.

6.4 The Court further notes that, as per the Recovery Memo, the

contraband was purportedly seized at Chhoti Sadari; yet, the

formal seizure proceedings were conducted not at the site of

recovery but at the CBN Office, Pratapgarh, subsequent to the

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transportation of the contraband thereto. Such deviation from the

statutory mandate namely, relocating the seized substance prior

to the completion of formal seizure prima facie undermines the

evidentiary sanctity of the recovery and renders the procedure

legally questionable.

6.5 A perusal of the factual matrix also reveals that the CBN

team from District Kota conducted the operation nearly 132

kilometres away from its jurisdictional headquarters, thereby

raising pertinent questions regarding territorial competence and

adherence to procedural safeguards.

7. Such procedural lapses have been elaborately discussed by

this Court in the case of Dharmendra Singh v. Union Of India,

Through CBN (S.B. Criminal Misc. Third Bail Application No.

13299/2024) decided on 21.10.2024. 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 offence
committed 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.

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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 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.

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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, Chennai and 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.

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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 as
under: -
"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 a
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;

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(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 passed
an order dated 08.05.2024 in SBCRLMB No.5457/2024
(Major Singh Vs. State of Rajasthan) while observing as
under :-
"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

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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
a prima face and tentative opinion of this Court only for
the purpose of justifiable disposal of the bail
application.
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 Office of 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

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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

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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 of factum of seizure."

In light of the observations delineated in the precedent cited

above, and upon a prima facie appraisal of the record, it appears

that the prosecution case in the present matter is beset with

conspicuous infirmities concerning jurisdictional competence and

procedural sanctity. The transference of the seized contraband

from the recovery site to another district office prior to formal

seizure undermines the authenticity of the recovery proceedings

and renders the evidentiary substratum fragile.

7.1. Furthermore, the petitioner has remained in judicial custody

for an extended period of approximately fifteen months and does

not appear to have any antecedents indicative of criminal

propensities. The protraction likely to ensue before the