Allowed

Sahil Kumar Kaku v. State of Rajasthan

Rajasthan HC19 Sept 2022CRLMB/3938/2021

Case brief

AI extract

What is this about?

High Court granted bail to the accused in an NDPS case, ruling that since the petitioner was personally searched alongside his bag, the mandatory notice under Section 50 of the NDPS Act was applicable, and its absence required bail.

What did the court decide?

Released on bail in connection with FIR No.53/2020 provided petitioner executes a personal bond of Rs.50,000/- with two sureties of Rs.25,000/- each.

Sahil Kumar Kaku Vs State of Rajasthan — Narcotics (NDPS) | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Miscellaneous Bail Application No. 3938/2021

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Sahil Kumar @ Kaku S/o Shri Vijay Kumar, Aged About 22 Years, By Caste Arora, R/o Ward No. 19, Present Address Ward No. 25, Sangariya, District Hanumangarh. (At Present Lodged In District Jail Hanumangarh).

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----Petitioner

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Versus

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State Of Rajasthan, Through P.p.

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----Respondent

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For Petitioner(s) : Mr. Harshad Bhadu For Respondent(s) : Mr. Laxman Solanki, PP

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HON'BLE MR. JUSTICE VIJAY BISHNOI

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Judgment / Order

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19/09/2022

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Heard learned counsel for the petitioner as well as learned Public Prosecutor and also perused the material on record.

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The petitioner has been arrested in FIR No.53/2020 of Police Station Sangariya District Hanumangarh for the offences punishable under Sections 8/22 of NDPS Act. He has preferred this bail application under Section 439 Cr.P.C.

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Learned counsel for the petitioner has submitted that as per the prosecution story, the police have arrested the petitioner while he was carrying a bag, in which 377.6 gms of tramadol in the form of capsules were found. It is submitted that the petitioner was personally searched and his bag was also searched by the police. It is submitted that though in his personal search, nothing was found whereas, in his bag, the police have alleged that the

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(2 of 4)

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[CRLMB-3938/2021]

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capsules containing narcotic substance tramadol were recovered weighing above commercial quantity. Learned counsel for the petitioner has submitted that the memo of personal search of the petitioner is also produced as Exhibit P-6 before the trial court. It is further submitted that before conducting the personal search of the petitioner, no notice under Section 50 of the NDPS Act was served upon him by the Seizure Officer. It is submitted that in the case of personal search, the Seizure Officer is required to serve a notice upon a person under Section 50 of the NDPS Act and in the absence of it, the whole proceedings vitiated.

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Learned counsel for the petitioner has placed reliance on decision of the Hon’ble Supreme Court rendered in State of Rajasthan Vs. Parmanand reported in 2014 5 SCC 345 . Learned counsel for the petitioner has invited my attention towards the statements of Seizure Officer (PW-1) recorded before the trial court and argued that in his cross examination, the Seizure Officer has admitted that before conducting personal search of the petitioner, no notice was given to him. It is submitted that since the Hon’ble Superme Court has held that it was mandatory for the empowered officer to comply with the requirements of Section 50(1), if they have not complied with, the trial stands vitiated. Learned counsel for the petitioner has submitted that in such circumstances of the case, the petitioner is entitled to be enlarged on bail.

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Per contra, learned Public Prosecutor has opposed the bail application and argued that since the narcotic contraband were recovered from the bag and not from the body of the petitioner, the provision of Section 50 of the NDPS Act are not attracted.

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(3 of 4) [CRLMB-3938/2021]

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Heard learned counsel for the parties and perused the material available on record. The Seizure Officer (PW-1) in his statements has got the memo of personal search of the petitioner exhibited as exhibit PW-6, however, in his cross examination also, he has specifically stated that before conducting the personal search of the petitioner, no notice was given to him and any notice under Section 50 has also not got exhibited by the Seizure Officer in his court statements.

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It is a case of the prosecution that the narcotic contraband were recovered from the bag, which the petitioner was carrying.

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The Hon’ble Superme Court in Parmanand Case has held

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that:-

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“if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application.”

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As stated earlier, along with the bag the petitioner was also personally searched by the Seizure Officer as stated by him in his Courts statements.

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Having regard to the totality of the facts and circumstances of the case, without expressing any opinion on the merits of the case, I deem it just and proper to grant bail to the accused petitioner under Section 439 Cr.P.C.

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Accordingly, this bail application filed under Section 439 Cr.P.C. is allowed and it is directed that petitioner Sahil Kumar @ Kaku S/o Shri Vijay Kumar shall be released on bail in connection with FIR No.53/2020 of Police Station Sangariya District Hanumangarh provided he executes a personal bond in a sum of Rs.50,000/- with two sound and solvent sureties of Rs.25,000/-

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(4 of 4)

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[CRLMB-3938/2021]

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each to the satisfaction of learned trial court for his appearance before that court on each and every date of hearing and whenever called upon to do so till the completion of the trial.

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(VIJAY BISHNOI),J

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SURABHII/280-

Sahil Kumar Kaku v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Sahil Kumar Kaku v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

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