Rajasthan High Court – Jodhpur
Mahendra Kumar vs State Of Rajasthan (2024:Rj-Jd:44106) on 25 October, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:44106]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 3rd Bail Application No. 11079/2024
Mahendra Kumar S/o Rajuram, Aged About 26 Years, R/o
Buddhanagar, P.s. Banar, Dist. Jodhpur Rural,raj. (Presently
Lodged In Dist. Jail, Sirohi)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Javari Lal (Brother of the accused)
For Respondent(s) : Mr. Rajesh Bhati, AGA
Mr. Ravindra Bhati, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
25/10/2024
1. The jurisdiction of this Court has been invoked by way of
filing 3rd bail 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
1. FIR Number 273/2022
2. Concerned Police Station Pindwara
3. District Sirohi
4. Offences alleged in the FIR Section 8/15 of the NDPS
Act
5. Offences added, if any -
6. Date of passing of impugned 17.08.2024
order
2. The first and second bail applications filed on behalf of the
petitioner being SBCRLMB Nos.12035/2023 & 2438/2024
came to be dismissed as not pressed by this Court vide
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orders dated 07.10.2023 & 29.04.2024 with liberty to file
afresh after statement of the IO is recorded in trial. Now,
Investigating officer has been examined, hence, the instant
bail application.
3. Brief facts of the case are that on 25.07.2022, Bhanwar Lal,
SHO PS Pindwara intercepted a Bolero Pickup bearing
registration No.RJ21-GC-4190 wherein Mahendra Kumar was
driving the vehicle and Bhajna Ram were found sitting
therein. Upon search, 694 Kg 750 gms poppy husk came to
be recovered. After search and seizure, the accused were
arrested and samples were taken by the IO for sending the
same to the FSL for it chemical examination. A case under
Sections 8/15 & 29 of the NDPS Act got registered against
them.
4. 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 is high probability that
the trial may take long time to conclude. 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.
5. Contrary to the submissions of Shri Javri Lal, brother of the
accused, learned Public Prosecutor opposes the bail
application and submits that the present case is not fit for
enlargement of accused on bail.
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6. I have considered the submissions made by both the parties
and have perused the material available on record as well as
challan papers.
7. The petitioner is behind the bars since 26.07.2022. Now,
more than two years have elapsed and there appears no hope
of culmination or conclusion of the same in the near future,
owing to the large number of prosecution witnesses who have
not been examined till now, therefore, though for the limited
purpose of justifiable disposal of bail application only but this
court is persuaded to go into the niceties of the matter.
8. This Court vide order dated 24.10.2024 passed in S.B.
Criminal Miscellaneous 2nd Bail Application No.13429/2024
(Mukesh Vs. State) in the similar nature of matter wherein
the petitioner therein has been enlarged on bail. For ready
reference the relevant part of the said order is reproduced
hereinunder:-
7. The specific plea has been taken regarding non-
compliance of Section 42 of the NPDS Act which is a
mandatory provision in nature. Admittedly the Sub-
Inspector Bhanwar Lal conducted search and seizure in
the matter was not a posted SHO rather at the relevant
point of time three Sub-Inspectors were posted at the
Bilara Police Station. In the entire file not a single paper
is there in record to establish the fact that Bhanwar Lal
was posted as SHO of the Police Station Bilara. The law in
this regard is no more res-integra that only those Sub-
Inspectors are authorised to conduct search and seizure
under the NDPS Act who are posted as SHO of the Police
Station. The Standing Order of 1986 is very much clear
on this aspect. While dealing with the identical issue, this
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Court vide order dated 09.11.2023 in the matter of Satya
Narayan @ Sattu Vs. State of Rajasthan at the time of
deciding the second bail application being SBCRLMB
No.3678/2023 has passed the following order:-
1. ……..
2. ……..
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 several flaws and laches in the
case of the prosecution. He submits that the seizing
officer, while undertaking proceedings for search and
seizure, was not posted as S.H.O. of the concerned
police station. He vehemently contended that sub-
section (1) of Section 42 of NDPS Act enumerates the
power of officers specified therein who are duly
empowered by the Central Government or the State
Government as the case may be and as per the law,
Sub Inspector is not empowered to effect search,
seizure and arrest under the NDPS Act as the
notification dated October 16, 1986 empowers only
those Sub Inspectors of Police to exercise the powers
under Sec. 42 of NDPS Act who are posted as State
House Officers. Learned counsel for the petitioner
vehemently submits that the mandatory provisions of
NDPS Act have not been complied with, thus, on this
count, the recovery of the contraband is vitiated.
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. ……..
5. Heard and perused the material available on
record. It is the case of defence that the Seizing
Officer was neither posted as SHO nor any charge of
the concerned Police Station was given to him. PW.1
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Lakshmilal, the Sub-Inspector who conducted the
search and seizure has been examined in the trial and
he has categorically stated in cross-examination that
one Shivraj was the SHO posted at the concerned
police station. He has further admitted that there is
nothing in writing, neither on record nor in the
Roznamcha, which can prove the fact that the SHO
handed over the charge of the police station to him.
Now, this court deems it appropriate to discuss the
law prevalent in the matter.
6. 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.
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
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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 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.
10. 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(Downloaded on 29/10/2024 at 09:39:01 PM)
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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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11. 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.
12. This Court is cognizant of the provisions
contained in Section 37 of the NDPS Act but
considering the submissions made by learned
counsel for the accused-petitioner regarding non-
compliance of statutory procedure, this court is of
the opinion that it is a fit case for grant of bail to the
accused petitioner. 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.
13. Accordingly, the instant bail application under
Section 439 Cr.P.C. is allowed and it is ordered that
the accused-petitioner 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.
8. The facts appearing in this case making it
abundantly clear that as per the mandate of law the
Seizing Officer Sub-Inspector Bhanwar lal was not
authorised to conduct search and seizure and as such,
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any recovery made by an unauthorised officer cannot be
countenanced. Where a power is given to do a certain
things in a certain way, the thing must be done in that
way or not at all; and that all other methods of
performance are necessarily forbidden. Affecting search
and seizure by an authorised officer vitiates the recovery
of contraband and now a question would arise whether a
an accused can be kept detained for an indefinite period
for the charge; the foundation of which is laid in direct
contrast to the mandatory legal provision. In this case,
the trial is going on but only one or two witnesses have
been examined. In the case of Roy V.D. Vs. State of
Kerala reported in AIR 2001 SC 137 the Hon’ble Apex
Court has even propounded to exercise inherent powers
vested in the High Court under Section 482 Cr.P.C. for
stifling and quashing of such unathorised recoveries.
Here is a case of bail only in which an accused is
incarcerated for a long time. On this count alone, when
the judicial proceeding can be quashed then in my view,
there should be no bar in granting bail to the accused.
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.
10. Now coming to the another legal aspect. The
samples were taken by the Sub-Inspector Bhanwar Lal at
the time of making search and seizure of the contraband
and the same samples were sent to the FSL for detection
of contraband. Admittedly, no samples were taken in the
presence of Magistrate whereas the samples taken at the
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spot were sent to the FSL. In this view of the matter it
can be said that the samples sent to the FSL and the
report of the FSL in this regard is nothing but is a waste
paper as propounded in a judgment titled as
Mohammed Khalid and another Vs. The State of
Telangana passed by Hon’ble the Supreme Court in
Criminal Appeal No(S). 1610 Of 2023 dated 01.03.2024,
it was held that since no proceedings were undertaken
for preparing of inventory and drawings of samples as
per Section 52-A of NDPS Act, thus, the FSL was
considered to be waste and was not considered worthy of
being read in evidence on the basis of this inter alia other
aspects, Hon’ble the Apex Court acquitted the appellants
of all charges. The relevant paragraph of the above
judgment is reproduced as under:-
“22. Admittedly, no proceedings under Section
52A of the NDPS Act were undertaken by the
Investigating Officer PW-5 for preparing an
inventory and obtaining samples in presence of
the jurisdictional Magistrate. In this view of the
matter, the FSL report(Exhibit P11) is nothing
but a waste paper and cannot be read in
evidence.”
11. Perusal of the record revealing that till date out of
40 witnesses only few witnesses could have been
examined. A further perusal of the statement of P.W. 1
Bhanwar Lal revealing that the samples were taken at
the spot, the same were marked and were sent to the
FSL for detection of contraband. Meaning thereby, the
samples were not collected in the presence of Magistrate.
Not making inventory in accordance with the guidelines
issued by the Government vide Standings Order
Nos.1/1988 & 1/1989 as well as the mandate of law
contained under Section 52-A of the NDPS Act is a
serious question which if decided in favour of the
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accused, then his conviction cannot be made. When
there appears reasonable ground to presume that certain
infirmity or legal defect would be fatal to the prosecution
still not exercising power of granting bail would mean not
honoring the guarantee of the Constitution given to every
individual regarding protection of his liberty.
12. In this instant matter too, the alleged contraband
was seized on 25.09.2023, and Section 52-A of NDPS Act
has not been complied with after the seizure of the
contraband and no samples drawn in the presence of
magistrate were sent for scientific investigation, thus, the
requisite compliance of Section 52-A of NDPS Act has not
been made.
13. This Court feels that though there is embargo
contained under Section 37 of the NDPS Act regarding
grant of bail in mattes pertaining to commercial quantity
and some others and true it is that bail can only be
granted when the twin conditions mentioned in the
provision are satisfied but this Court feels that
expressing final opinion to the effect that there are no
reasonable ground to believe that the petitioner is not
guilty may stifle or abort the judicial proceeding in the
midway and then there would remain nothing for the trial
Court to proceed further in the matter and as such, the
moment, the bail is granted by observing the above in
clear and express terms, it would be imperative for the
trial Court to either discharge or acquit him. The
continuation of the trial whereafter would be a futile
exercise at one hand and on the other hand the same
would amounts to an abuse of process of law. This Court
is of the view that pending investigation or pending trial
if a serious legal defect is observed in the case of the
prosecution, which may prove fatal to the prosecution at
the time of conclusion then instead of giving a definite
opinion that he is not guilty of the offence, it would be
suffice if the bail application is allowed by giving reasons
regarding observance of legal defect only; but not by
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giving a final finding on that aspect. The view of this
Court is based upon the gist of the judgment passed by
Hon’ble the Supreme Court in the matter of Mohd
Muslim @ Hussain V. State (NCT OF DELHI) 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, 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 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
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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 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)
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14. 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 than two
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 (Supra) 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 they are not guilty of the
alleged crime but for the limited purpose for the justifiable
disposal of the bail applications, 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 are 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. Thus, in the peculiar circumstances of this case, I
am of this view that the embargo contained under Section
37 of the NDPS Act would not come into the way of
granting bail.
9. Now coming to the case in hand; a perusal of the statement
of P.W. 1 Bhanwar Lal who affected search and seizure
revealing that he made a categoric admission in first six lines
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of his cross-examination that he was not a posted SHO of
Police Station Pindwara and some material was there in the
form of Ex.D/1 & Ex.D/2 wherein it was reported that
proceedings were conducted as per the instructions of SHO
Champaram, however, there is not a single paper in the entire
charge sheet wherein the presence of SHO Champaram may
have been shown. A further admission in the cross
examination that not a single piece of evidence has been
submitted to show that at the relevant point of time, the SHO
Champaram was not available in the police station or that the
Seizing Officer Bhanwar Lal was having the charge of police
Station Pindwara at that time.
10. The above mentioned bail has been granted by this Court
holding that the sub-inspector Bhanwar Lal was not a posted
SHO of Police Station Pindawara and he has admitted this
fact in the trial. He candidly admits that there is not a single
paper in the case file showing that he was the posted SHO.
As per the notification of 1986, only those sub-inspector who
are posted as SHO are empowered to make search and
seizure. Since the seizure is made by an unauthorized person
so that the entire inquiry vitiates through a plethora of
judicial pronouncements by Hon’ble the Supreme Court,
Vijaysinh Chandubha Jadeja Vs. State of Gujrat reported
in AIR 2011 SC 77 decided on 29.10.2010 and in the case
of Roy V.D. (Supra)
11. Looking to the high probability that the trial may take long
time to conclude. In light of these facts and circumstances, it
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is deemed suitable to grant the benefit of bail to the
petitioner in the present matter.
12. 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
9-Mamta/-
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