In a bail application under Section 439 Cr.P.C. regarding NDPS offences, the petitioner argued that the search was invalid due to lack of prior information under Section 42 of the NDPS Act. The court held that the drug recovery was a chance recovery and Section 42 did not apply, ruling that bail should be decided based on Section 37 of the NDPS Act.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Criminal Miscellaneous 4th Bail Application No. 10403/2023
Padma Ram S/o Sh. Gordhan Ram, Aged About 46 Years, Devali Hulla, Bagdi P.s., Dist. Pali. (Lodged In Dist. Jail, Rajsamand).
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
| For Petitioner(s) | : Mr. |
Bhagirath RayBishnoi |
|---|---|---|
| For Respondent(s) | : Mr. |
Laxman Solanki,P.P. |
HON'BLE MR. JUSTICE KULDEEP MATHUR
ORDER
11/10/2023
This fourth application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with FIR No.378/2020 registered at Police Station Devgarh, District Rajsamand for offences under Sections 8/15, 8/25 and 8/29 of the NDPS Act.
Learned counsel for the petitioner submitted that the petitioner has been falsely implicated in the present case. Learned counsel submitted that Seizure Officer Prem Singh, Sub-Inspector, PS Devgarh had conducted entire search and seizure proceedings in the present case, in violation of Section 42(1) of the NDPS Act. Learned counsel submitted that only specified officers who are duly empowered by Central Government or the State Government as the case may be, can effect search and seizure under the NDPS Act. Learned counsel submitted that as per notification dated October 16, 1986, only those Sub-Inspectors or police who are
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posted as Station House Officer (SHO) of the police stations can exercise powers under Section 42 of the NDPS Act.
Learned counsel submitted that in the present case, one Nana Lal was posted as SHO of the concerned police station, however, in violation of mandatory provisions of the NDPS Act, Prem Singh, Sub-Inspector, PS Devgarh had undertaken proceedings for search and seizure. It was thus submitted that the recovery of contraband is vitiated on these grounds. To buttress his arguments, attention of the Court was drawn towards the statements of Prem Singh, Sub Inspector (PW-1), Jaswant Singh (PW-2), Suresh Singh (PW-3), Ratan Lal (PW-4), Anil Kumar (PW5) and Gajendra Singh, Investigating Officer (PW-6).
In support of contentions raised by the learned counsel for the petitioner, reliance was placed on orders passed by coordinate Bench of this Court passed in the cases of Ashok @ Mulla Ram Vs. State of Rajasthan (S.B.Cr.Misc. 2nd Bail Application No.7492/2023) decided on 19.8.2023 and Gori Lal Vs. State of Rajasthan (S.B. Cr. Misc. 2nd Bail Application No.11087/2023) decided on 3.10.2023.
Learned counsel submitted that the petitioner is in judicial custody since 08.10.2020; trial likely to take sufficiently long time, therefore, the petitioner deserves to be enlarged on bail.
Per contra, learned Public Prosecutor vehemently opposed the application for bail.
Responding to the arguments advanced on behalf of the counsel for the petitioner, learned Public Prosecutor submitted that on 08.10.2020, Nana Lal, SHO, PS Devgarh, received a wireless message that an accused namely Raju Singh has run away with a
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country made pistol from police custody. On receiving aforesaid information, Nana Lal, SHO, instructed Prem Singh, Sub-Inspector to conduct blockade ( nakabandi ) on all possible routes of escape of above named accused. During blockade ( nakabandi ), Prem Singh, Sub-Inspector suspected a car having registration No.MH12-AN-4600 and flagged it down. The petitioner and co-accused Jora Ram were found sitting in the offending vehicle. During search of the vehicle, huge quantity of contraband (poppy husk/ straw) was recovered from 10 plastic bags.
Learned Public Prosecutor submitted that there was no previous information with Nana Lal regarding illegal substance being carried/transported in the offending vehicle. Learned Public Prosecutor further submitted that the vehicle was intercepted while ‘ in transit ’ as the police was looking for one Raju Singh accused, who had run away from PS Jaitaran with a country made pistol. It was thus, submitted that the provisions of Section 42 of the NDPS Act are not attracted in the present case let alone its mandatory compliance.
Learned Public Prosecutor submitted that a huge quantity of contraband (poppy husk/ straw) weighing 162 kgs. has been recovered from the possession of the petitioner and therefore, looking to the seriousness of the accusations against present petitioner, he does not deserve to be enlarged on bail.
Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.
Having considered submissions advanced at bar, facts and circumstances of the case and having carefully gone through the FIR, challan papers and statements of various prosecution
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witnesses, this Court prima facie finds that the Seizure Officer had no previous information about the contraband being transported by the petitioner in the offending vehicle. The facts of the case show that the blockade ( nakabandi ) was conducted to apprehend one Raju Singh who had run away from police custody. The offending vehicle was flagged down without there being any previous information about the contraband being transported in the vehicle, however, on finding it to be suspicious, it was flagged down and searched and a huge quantity of contraband was recovered. Thus, this is a case of ‘chance recovery’ and not of Seizure Officer acting upon some definite/previous information.
In the prima facie opinion of this Court, provisions of Section 42 of the NDPS Act would apply where any specific information has been received about any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under the NDPS Act has been committed. This Court prima facie finds that since the offending vehicle was ‘ in transit ’ at the time when search was conducted and Seizure Officer had no prior information/knowledge about the contraband being transported by the petitioner and co-accused, the provisions of Section 42 of the NDPS Act would not apply in the present petitioner. This Court thus finds that there was no need of search or Seizure proceedings being conducted in the present case by adhering to the provisions of Section 42 of the NDPS Act. Even otherwise, Hon’ble the Apex Court in the case of Union of India through Narcotics Control Bureau, Lucknow vs. Mohd. Nawaz Khan reported in 2021 (10) SCC 100 , was pleased to hold that question with regard to non-compliance of Section 42 of
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the NDPS Act is the one which should be raised in the course of trial.
In view of aforesaid discussion, particularly keeping in view the fact that the petitioner was found sitting in offending vehicle which was in ‘ in transit ’ at the time when it was intercepted in a public place. Moreover, the Seizure officer had no definite information about huge quantity of contraband being transported in it. Therefore, this Court is unable to record its mandatory satisfaction in terms of Section 37 of the NDPS Act to enlarge the petitioner on bail.
Consequently, the fourth application for bail is hereby rejected.
(KULDEEP MATHUR),J
/tarun goyal/
2 issues framed by the court
Whether non-compliance with Section 42 of the NDPS Act by the Seizure Officer renders the search and seizure vitiated for bail purposes.
Whether Section 42 of the NDPS Act applies when the vehicle was intercepted during a blockade for a different accused without prior information about contraband.
Colour shows how this judgement treated each authority
Ashok @ Mulla Ram Vs. State of RajasthanReferred¶20
Ashok @ Mulla Ram Vs. State of Rajasthan (S.B.Cr.Misc. 2nd Bail Application No.7492/2023)
Gori Lal Vs. State of RajasthanReferred¶20
Gori Lal Vs. State of Rajasthan (S.B. Cr. Misc. 2nd Bail Application No.11087/2023)
Union of India through Narcotics Control Bureau, Lucknow vs. Mohd. Nawaz KhanReferred¶36
Union of India through Narcotics Control Bureau, Lucknow vs. Mohd. Nawaz Khan reported in 2021 (10) SCC 100 · Who else cites this
3 provisions across 2 enactments
PADMA RAM
STATE OF RAJASTHAN
KULDEEP MATHUR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
