Allowed

Mithu Lal v. State of Rajasthan

Rajasthan HC30 Oct 2023CRLMB/4202/2023

Case brief

AI extract

What is this about?

The High Court at Jodhpur allowed a bail application under Section 439 CrPC for an accused charged under the NDPS Act. The Court emphasized that the failure to comply with mandatory provisions of Section 42 regarding prior information to superior officers is a serious concern but stopped short of letting it impact the trial merits.

What did the court decide?

Accused to be enlarged on bail by furnishing a personal bond of Rs. 50,000/- with two sureties of Rs. 25,000/- each.

Mithu Lal Vs State of Rajasthan — Narcotics (NDPS) | Rajasthan HC (2023)

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[2023:RJ-JD:36710]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Miscellaneous Second Bail Application No. 4202/2023

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Mithu Lal S/o Shri Mangi Lal Dhakad, Aged About 65 Years, R/o Billkhanda, Singoli Police Station, Distt Neemach (Mp) (Lodged In Sub Jail, Gulabpura)

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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. Bhagirath RayBishnoi
For Respondent(s)	: Mr. S.S. Rajpurohit,PP

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HON'BLE MR. JUSTICE FARJAND ALI

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Order

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30/10/2023

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The jurisdiction of this court has been invoked by way of filing an 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	No.162/2021
2.	Concerned Police Station	Rayla
3.	District	Bhilwara
4.	Offences alleged in the FIR	Sections 8/18 and 8/25 of the NDPS Act.
5.	Offences added,if any	--
6.	Date of passing of impugned order	28.03.2023

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The concise facts of the case as alleged in the FIR are that the co accused Head Constable Dinesh Dhakad S/o Jamna Lal Dhakad, Mukesh Dhakad S/o Shri Lal Dhakad and Sambhu Lal S/o Mohan Lal Dhakad have been released on bail vide order dated 13.10.2023 and the case of the present petitioner is on better footing.

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3. The order dated 13.10.2023 is reproduced here as under:-

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

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S.No. Particulars of the Case

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1.	FIR Number	No.162/2021
2.	Concerned Police Station	Rayla
3.	District	Bhilwara
4.	Offences alleged in the FIR	Sections 8/18 of the NDPS Act
5.	Offences added, if any	Sections 25 of NDPS Act
6.	Date of passing of impugned order	19.05.2023

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2. Concerned Police Station Rayla 3. District Bhilwara 4. Offences alleged in the FIR Sections 8/18 of NDPS Act. 5. Offences added, if any Section 25 of NDPS Act 6. Date of passing of impugned order 19.05.2023 2. It is contended on behalf of the accused-petitioners that no case for the alleged offences is made out against them and their incarceration is not warranted. There are several flaws and laches in the case of the prosecution. He submits that the

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seizing officer, while undertaking proceedings for search and seizure, was not posted as S.H.O. of the concerned police station. He submits that the ASI had been informed by the SHO about the presence of psychotropic substance in the car before he left to conduct search and seizure, yet the seizing officer did not relay the above- mentioned information to the senior officers before proceeding further which is mandatory under Section 42 of NDPS Act and thus, the entire process of recovery stands vitiated on this count because of non-compliance of Section 42 of NDPS Act. 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.

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3. 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.

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4. 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 Kailash Chandra, the Assistant sub-Inspector who intercepted the car during nakabandi has been examined in the trial and he has categorically stated in his cross-examination that no information was relayed to the superior officer in this case and no entry to this effect has been made in the record. It is an admitted position that no compliance of Section 42(2) of NDPS Act was made in this present case as the Seizing Officer PW-3 Sunil Choudhary candidly admitted in his cross-examination that no information under section 42(2)was supplied to higher officers before proceeding for the search and seizure of contraband. There remains no

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question to moot about the fact that there was previous information with the seizing officer regarding storage of illegal substance defined as contraband as per the provisions of NDPS Act, thus, the provision envisaged under Section 42 of NDPS Act would squarely apply in this case. The prosecution has utterly failed to establish the fact that the mandatory provisions were complied with since it is admitted fact that the information was not supplied to the superior officer according to Section 42(2) of NDPS Act. There is neither any proof of dispatching of the information to the superior officer nor is there any proof that reflects that the same was sent or received and lastly, there is nothing on record to show that there was acknowledgment on part of the superior officer upon receiving the information which is mandatory in nature.

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5. As per the mandate of law, if the officer has prior information regarding breach of the provisions of NDPS Act, he is under a legal obligation to note down the information and before proceeding to conduct search and seizure, he has to send a report to the superior officers. It is well settled legal position of law that the provision of Section 42 of the NDPS Act is required to be complied with mandatorily as propounded by The Supreme Court in the case of Vijaysinh Chandubha Jadeja Vs. State of Gujarat reported in AIR 2011 SC 77.

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6. The most important part of the matter is that the search in this case was made by an Asst. Sub-Inspector, who upon search of the vehicle found presence of contraband in the car and thereupon, he called the SHO concerned to prepare the seizure memo. It does not matter that the seizure memo was prepared in this case by a posted SHO rather in my humble view, it was just an empty formality as the search and seizure had already been made by an Asst. Sub-Inspector, who is neither a competent officer under Sections 41 & 42 of the NDPS Act

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nor under the Standing Order of 1986 issued by the Government of India.

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7. In my considered view, the non-compliance of mandatory provisions of NDPS Act, which have to be complied with stricto sensu, is a matter of serious concern and flouting of the procedure stipulated in Sections 41 & 42 of the NDPS Act forms a point of consideration for this Court while entertaining a bail plea akin to the instant one.

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8. Having regard to the totality of facts and circumstances as available on record and upon a consideration of the arguments advanced, at this stage of infancy of trial, the observations made herein above shall not influence the trial Judge at any stage of the trial. The observations made here are only for the justifiable disposal of the instant bail application which shall have no bearance on the merits of the case.

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9. Accordingly, the instant bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accusedpetitioner 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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In view of the above and taking into account the fact that the case of the present petitioner is not distinguishable from the co accused, I deem it appropriate to accede to the prayer made for bail.

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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.

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Have considered the submissions made by both the parties and have perused the material available on record. There is high probability that the trial may take long time to conclude. In light of these facts and circumstances, it is deemed suitable to grant the benefit of bail to the petitioner in the present matter. 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.

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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 as named in the cause title shall be enlarged on bail provided he/she 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/her 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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390-Hanuman/-

Mithu Lal v. State of Rajasthan

Case brief

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Mithu Lal v. State of Rajasthan

Case brief

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