Allowed

Mahipal v. State of Rajasthan

Rajasthan HC25 Apr 2022CRLMB/5346/2022

Case brief

AI extract

What is this about?

The High Court allowed a second bail application, ordering the release of the accused in an NDPS charge sheet case due to the Investigating Officer's failure to strictly comply with Section 50 of the NDPS Act during the accused's body search while the trial is expected to take a long time.

What did the court decide?

Accused released on bail on a personal bond of Rs.2,00,000/- with two sureties of Rs.1,00,000/- each, subject to stipulations.

Mahipal 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. 5346/2022

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Second Bail

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Mahipal S/o Babu Ram, Aged About 39 Years, B/c Godara Bishnoi, R/o Udaniyo Ki Dhani, Sanwrij, Phalodi Police Station, District Jodhpur. (Lodged In District Jail, Chittorgarh)

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----Petitioner

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Versus

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State Of Rajasthan, Through Pp

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----Respondent

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For Petitioner(s) : Mr. B. Ray Bishnoi For Respondent(s) : Mr. Laxman Solanki, P.P.

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HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

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Order

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25/04/2022

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Accused petitioner has made this second attempt for seeking bail in connection with FIR No.108/2021 of Police Station Badi Sadri, District Chittorgarh for offences punishable under Section 8/18 of the NDPS Act.

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The first bail application at the behest of petitioner was dismissed as not pressed with liberty to file fresh bail application after recording statement of Seizure Officer. Thereafter, statements of Seizure Officer and two other witnesses have been recorded before learned trial Court and both the witnesses have not supported the story of prosecution and turned hostile. It is further stated that notice given under Section 50 of the NDPS Act is available at page No.20 of the charge-sheet and, in that notice

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(2 of 3)

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[CRLMB-5346/2022]

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only one option was given by Seizure Officer that search may be conducted before any competent gazetted officer and right to search before Magistrate has not been given by the Seizure Officer. It is further stated that sub-clause (3) of Section 50 is also not incorporated in the notice that “the Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made”. It is further submitted that accused-petitioner was personally searched, therefore, as decided by Hon’ble Apex Court in the case of Sanjeev & Anr. Vs. State of Himachal Pradesh reported in 2022 LiveLaw (SC) 267, compliance of the provisions of Section 50 of the NDPS Act is necessary if the body of a person is searched by the Seizure Officer but the same was not in strictly complied with in the present case. It is further submitted that Seizure memo is available at page no.29 which is prepared at 7:35 P.M. but no search warrant was obtained by the Seizure Officer. It is further submitted that samples were sent to the FSL on 04.05.2021. Lastly, it is submitted that accused-petitioner is in judicial custody since 18.04.2021 and further trial will take long time, therefore, benefit of bail may be granted to the accused-petitioner.

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Learned Public Prosecutor has vehemently opposed this second bail application of petitioner and stated that since contraband was recovered from four bags, therefore, compliance of Section 50 of the NDPS Act is not necessary but does not controvert remaining arguments advanced by learned counsel for

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(3 of 3)

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[CRLMB-5346/2022]

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the petitioner and the fact that body of the accused-petitioner was searched by the Investigating Officer.

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Having regard to the facts and circumstances of the case and particularly the fact that undoubtedly body of the accusedpetitioner was searched by Seizure Officer and it was recently decided by Hon’ble Apex Court in the case of Sanjeev & Anr. Vs. State of Himachal Pradesh reported in 2022 LiveLaw (SC) 267, strict compliance of the provisions of Section 50 of the NDPS Act is necessary when body search of accused is conducted but as stated above, the same is not complied with in the present case; that further trial will take long time, without expressing any opinion on the merits/demerits of the case, this Court is of the opinion that the second bail application filed by the petitioner deserves to be accepted.

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Accordingly, this second bail application under Section 439 Cr.P.C. is allowed and it is ordered that accused-petitioner, Mahipal S/o Babu Ram, arrested in connection with F.I.R. No.108/2021 of Police Station Badi Sadri, District Chittorgarh, to be released on bail; provided he furnishes a personal bond of Rs.2,00,000/- with two sureties of Rs.1,00,000/-each to the satisfaction of learned trial Court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so.

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(DEVENDRA KACHHAWAHA),J

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76-Bharti/-

Mahipal v. State of Rajasthan

Case brief

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Mahipal v. State of Rajasthan

Case brief

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