Harzindra Singh vs State Of Rajasthan (2025:Rj-Jd:39668)
2025 Latest Caselaw 12740 Raj

Rajasthan High Court - Jodhpur

Harzindra Singh vs State Of Rajasthan (2025:Rj-Jd:39668) on 8 September, 2025

Author: Farjand Ali

Bench: Farjand Ali

[2025:RJ-JD:39668]

          HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
     S.B. Criminal Miscellaneous 3rd Bail Application No. 7398/2025

Harzindra Singh S/o Ajayab Singh @ Ajib Singh, Aged About 49
Years, R/o Jhaduvala Teh And Ps Guruharshay Dist Firozpur
Punjab (Presently Lodged In District Jail Chittorgharh)
                                                                         ----Petitioner
                                      Versus
State Of Rajasthan, Through Pp
                                                                    ----Respondent


For Petitioner(s)           :     Mr. Ashok Khillery
                                  Mr. B.R. Bishnoi
For Respondent(s)           :     Mr. S.S. Rathore, Dy.G.A.



                 HON'BLE MR. JUSTICE FARJAND ALI

Order

08/09/2025

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

filing an 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                  Nimbahera Sadar
     3.     District                                  Chittorgrah
     4.     Offences alleged in the FIR               Section 8/18 of the NDPS
                                                      Act
     5.     Offences added, if any                    Section 8/29 of the NDPS
                                                      Act
     6.     Date of passing of impugned 12.05.2025
            order

2. In nutshell, the facts of the case are that on 19.08.2023

Incharge of PS Nimbahera along with his team near Ahirpuri

during nakabandi intercepted a Swift Car bearing registration

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No.PB30 X4183, which was driven by driver Bhagwat Singh

alongwith his companion Harzinder Singh. During search, 8 plastic

bags (weighing 8 Kg 240 gms) containing opium got recovered

from the said vehicle whereafter, after following usual process, the

petitioners were arrested and case under Section 8/18 of the

NDPS Act got registered.

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. I have heard and considered the submissions made by both

the parties and perused the material available on record.

5.1. A meticulous perusal of the record reveals that on

19.08.2023, during a nakabandi operation near Ahirpuri, the

Incharge of Police Station Nimbahera intercepted a Swift car

bearing registration number PB30 X 4183. The vehicle, driven by

Bhagwat Singh and accompanied by Harzinder Singh, was

searched, leading to the recovery of eight plastic bags containing

a total of 8.240 kilograms of opium.

5.2. From the statement of PW-7, Bhagwat Singh, it is evident

that the team departed the police station at 10:54 hours,

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proceeding towards the blockade without the presence of Motbir,

who was later summoned on suspicion of involvement in illicit

activity. The witness denied any knowledge of Motbir acting as a

police pocket witness or his involvement in other cases. It was

admitted that Virendra Singh, the Circle Inspector, was the police

station in-charge, and no formal handover of charge was made to

Bhagwat Singh, the senior-most Sub-Inspector present. The

applicability of the 1/86 Gazette Notification was acknowledged,

under which Bhagwat Singh was not appointed as Station House

Officer (SHO).

5.3. The vehicle was stopped by a hand signal from approximately

200 meters away. Subsequently, a personal search notice under

Section 50 of the Criminal Procedure Code was issued, initially to

Harjinder Singh. This notice was typed by Jeevan Lal, who did not

provide a certificate under Section 65B of the Indian Evidence Act.

Despite clear indications of contraband, the investigating officer

failed to prepare any immediate memorandum or slip recording

the seizure.

5.4. The officer candidly admitted non-compliance with multiple

mandatory procedural safeguards under the Narcotic Drugs and

Psychotropic Substances (NDPS) Act. Notably, no consent was

obtained for the search from any gazetted officer or judicial

magistrate; no reasons were recorded for personally conducting

the search; no Fard (detailed report) was prepared as mandated

by subsection 5.6 of Section 50; and no arrangements were made

to produce the accused before a magistrate prior to the search.

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The judicial magistrate was neither called to the seizure site, nor

were reasons documented for this omission.

5.5. It is an undisputed and admitted fact that the NDPS Act

mandates that the process of search and seizure must be

conducted by a specific class of officers typically gazetted officers

or judicial magistrates vested with statutory authority. Strict

adherence to this procedure is indispensable to maintain the

sanctity and legality of the search operation. In the instant case,

this prescribed procedure was flagrantly ignored, as the search

and seizure were executed by an unauthorized officer, without

compliance to statutory formalities. Such non-compliance

constitutes a grave procedural irregularity that vitiates the entire

search process and casts serious doubt over the authenticity and

reliability of the recovery and subsequent prosecution.

5.6. Further, following the unequivocal admission of procedural

lapses by the recovery officer, the principle that an unauthorized

seizure cannot be retrospectively regularized is well-established in

law. Reliance is placed on the judgment in Roy V.D. vs. State of

Kerala (AIR 2001 SC 137), wherein although the Court

exercised powers under Section 482 CrPC to stifle proceedings on

grounds of procedural infirmity, the present case is

distinguishable, as it involves the fundamental right to personal

liberty guaranteed under Article 21 of the Constitution of India.

Article 21 mandates that no person shall be deprived of right to

life and liberty except by a procedure established by law, which

must be just, fair, reasonable, and impartial. Thus, the issue

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before this Court transcends mere procedural correctness and

fundamentally concerns the protection of constitutional liberties.

Consequently, the invocation of inherent powers to abort

proceedings, as done in Roy V.D., cannot override the petitioner's

entitlement to bail, especially when procedural lapses cast

substantial doubt on the prosecution's case and prolong

incarceration without trial.

5.7. This Court has dealt with the issue in hand by passing a

judgment in the case of State of Rajasthan vs. Pawan Kumar

(SBCRLA (SB) No. 1346/2025), decided on 23.07.2025. The

pertinent portion of the judgment is hereby reproduced for clarity

and guidance:

6. This Court finds no illegality or perversity in the findings arrived at by the learned Special Judge. The prosecution's failure to establish compliance with the mandatory provisions under Section 42 of the NDPS Act, particularly the authority of the officer conducting the search, renders the entire recovery process doubtful and contrary to law. In this regard, the testimony of prosecution witness P.W.18, who was the alleged recovery officer, assumes critical significance. In his examination-in-chief, P.W.18 categorically stated that he was posted as a Sub- Inspector at Police Station Kotwali on 07.11.2011, but conspicuously omitted to state that he was the Station House Officer or held charge of the police station on the said date. During cross-examination, he acknowledged that the regular SHO, Shri Narendra Poonia, was posted at the police station on that day but was on medical leave. Although he further claimed that the charge was handed over to him, no formal charge report, order of entrustment, or contemporaneous entry in the roznamcha was produced or

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exhibited before the trial Court to substantiate such a claim. This omission fatally undermines the prosecution's case, as the essential requirement of proving that the recovery officer was duly authorised under the Notification No. F.1(3)FD/EX/ 85-I dated 16.10.1986 remains unmet.

7. 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 view of this, when the seizure is effected by an officer not competent under the statutory provisions, the entire recovery stands vitiated, and consequently, no conviction can legally be sustained based on such recovery.

8. 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.

9. 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.

10. 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

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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.

11. 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.

12. 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

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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.

13. 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.

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5.8. The Court reiterates the necessity of strict adherence to

procedural mandates under the NDPS Act to uphold the rule of law

and prevent miscarriage of justice. Non-compliance not only

jeopardizes prosecution but also undermines the accused's right to

a fair trial.

6. The procedural deficiencies in the instant case further extend

to the failure to obtain photography and videography during

seizure and sealing of the contraband, and the absence of

certification and sealing by the judicial magistrate on seized

goods, samples, and reports forwarded to the Forensic Science

Laboratory (FSL). These lapses contravene statutory mandates

and established judicial precedents designed to ensure

transparency and integrity in evidence collection.

6.1. The investigating officer also admitted that no officer from

the Deputy Superintendent of Police's office was called to

supervise the NDPS proceedings, and though proceedings under

Section 52A were undertaken, the seized articles and samples

presented in court lacked the judicial magistrate's seal and

certification. The FSL reports also bear no such authentication.

6.2. These cumulative procedural violations strike at the very root

of the prosecution's case, severely undermining the sanctity of the

seizure and the evidentiary value of the recovered contraband.

Such lacunae demonstrate a marked disregard for statutory

safeguards meant to protect the rights of the accused and

maintain the integrity of the criminal justice system.

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7. In view of the foregoing, and considering the petitioners'

custody since 19.08.2023, the Court is persuaded that the

substantial procedural irregularities, coupled with prolonged

detention pending trial, strongly favor the grant of bail. The

constitutional guarantee of personal liberty under Article 21

mandates that an accused should not be deprived of liberty

indefinitely without due process and a speedy trial.

8. 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 him.

Otherwise, it is the rule of Crimnal Jurisprudence that he shall be

presumed innocent until the guilt is proved.

9. 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 concerned on all the

dates of hearing as and when called upon to do so.

(FARJAND ALI),J 18-Mamta/-

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