Allowed

Suresh Kumar v. State of Rajasthan

Rajasthan HC12 Dec 2023CRLMB/2492/2023

Case brief

AI extract

What is this about?

The High Court allowed a bail application under Section 439 CrPC. The court observed that the search and seizure were conducted by an officer who was not posted as Station House Officer, aggoring Section 42 of the NDPS Act. While noting the procedural violation, the court granted bail as the case was fit for enlargement, leaving no final observation on the validity of the case to avoid affecting t

What did the court decide?

Bail granted to the accused-petitioner on condition of furnishing a personal bond of Rs. 50,000/- with two sureties of Rs. 25,000/- each.

Suresh Kumar Vs State of Rajasthan — Narcotics (NDPS) | Rajasthan HC (2023)

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[2023:RJ-JD:43627]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Miscellaneous Bail Application No. 2492/2023

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Suresh Kumar S/o Hukma Ram, Aged About 29 Years, R/o Meerpura, Karda Police Station, District Jalore. (Lodged In Sub Jail, Sanchore)

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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. Vijay Raj Bishnoi For Respondent(s) : Mr. Gaurav Singh, PP

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HON'BLE MR. JUSTICE FARJAND ALI

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Order

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12/12/2023

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The jurisdiction of this court has been invoked by way of filing an instant application under Section 439 CrPC at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:

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S.No.	Particulars of	the Case
1.	FIR Number	45/2022
2.	Concerned Police Station	Sanchore
3.	District	Jalore
4.	Offences alleged in the FIR	Sections 8/21 and 22 of NDPS Act.
5.	Offences added, if any	Sections 25 and 29 of NDPS Act.
6.	Date of passing of impugned order	02.01.2023

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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. He submits that the seizing officer,

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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. There are several flaws and laches in the case of the prosecution. 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.

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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. 4. Have considered the submissions made by both the parties and have 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 Satyadev Singh, 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 Praveen Kumar 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

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Roznamcha, which can prove the fact that the SHO handed over the charge of the police station to him. This court has passed a detailed order dated 09.11.2023 in this regard in S.B. Criminal Misc. II Bail Application No. 3678/2023 titled Satyanarayan @ Sattu S/o Jeetmal Jat Vs. State of Rajasthan , the relevant portion of the order is reproduced here as under:-

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“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.

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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 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.

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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:-

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S.O. 115.- In exercise of the powers conferred by section 42 of the Narcotic Drugs and Psychotropic Substances Act,

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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:

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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.”

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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 noncompliance of statutory procedure, this court is of the opinion that it is a fit case for grant of bail to the accused petitioner. Be that as it may, no final observation and comment can be made at this stage, as the same may influence the course of trial.

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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.

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( FARJAND ALI), J.

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7-Mamta/-

Suresh Kumar v. State of Rajasthan

Case brief

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Suresh Kumar v. State of Rajasthan

Case brief

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