Allowed

Om Prakash Vishnoi Son of Bhikaram v. State of Rajasthan

Rajasthan HC19 Jan 2024CRLMB/105/2023

Case brief

AI extract

What is this about?

Hon'ble Justice Farjand Ali allowed the third bail application, granting liberty to the accused after remaining in custody for nearly four years. The Court noted that the recovery was vitiated due to the prosecution's failure to comply with mandatory provisions of Sections 42 and 50 of the NDPS Act, citing Supreme Court precedents requiring strict adherence.

What did the court decide?

Allowed the third bail application; enlarged the accused-petitioner on bail subject to furnishing a personal bond of Rs.50,000/- and two sureties of Rs.25,000/- each.

Om Prakash Vishnoi Son of Bhikaram Vs State of Rajasthan — Narcotics (NDPS) | Rajasthan HC (2024)

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[2024:RJ-JP:5333]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Miscellaneous 3^rd Bail Application No. 105/2023

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Om Prakash Vishnoi Son Of Bhikaram, Aged About 46 Years, Resident Of 303, Pal Road, Marudhar Kesari Nagar, Shobhawaton Ki Dhani, Police Station Chopasani, Housing Board, District Jodhpur (Raj.) ( At Present Petitioner Confined In Central Jail Ajmer)

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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. Ram Ratan Gurjar For Respondent(s) : Mr. Tej Prakash Sharma, SPP NCB

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HON'BLE MR. JUSTICE FARJAND ALI

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Order

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19/01/2024

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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	VIII(IO)/06/NCB/JZU/202 0
2.	Concerned Police Station	Ncb, Jodhpur
3.	District	Jodhpur
4.	Offences alleged in the FIR	Sections 8/18, 25 and 29 of NDPS Act.
5.	Offences added, if any	--
6.	Date of passing of impugned order	16.09.2022

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The Second bail application of petitioner came to be dismissed as not pressed by a this Court vide order dated

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[2024:RJ-JP:5333]

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21.03.2022 with the liberty to renew the prayer after statement of prosecution witnesses Sudhir Saini and Mohit Sharma are examined in trial. Now, they have been examined, hence the present third bail application is filed.

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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. There are several flaws and laches in the case of the prosecution. It is an admitted case of the prosecution that no notice under Section 50 of NDPS Act was given to the petitioner before searching him. He further submits that the seizing officer had not informed about the compelling reasons for which they conducted search and seizure after sunset 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. The petitioner is behind the bars since long 4 years. 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. 4. 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. The circumstances created by the Police team in this matter bring the recovery into doubt. It is an admitted position that no compliance

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of Section 42(1) of NDPS Act was made in this present case as the seizing officer candidly admitted in his cross-examination that no information under section 42 was supplied to higher officers before proceeding for the search and seizure of contraband to fulfill the specific requirement prescribed in the second proviso of sub-clause (1). No information regarding the reasons that the officer had to believe that a search warrant or authorisation could not be obtained without affording opportunity for concealment of evidence or facility for escape of the accused which is why they had to conduct search and seizure without warrant/authorisation after sunset and before sunrise was either recorded or sent to superior officers. NDPS Act comprises of strict provisions and it is a draconian law which is to be followed mandatorily. The prosecution has utterly failed to establish the fact that the mandatory provisions were complied with since it is admitted fact that the afore-said information was not supplied to the superior officers according to Section 42 of NDPS Act. In State of Rajasthan v. Jagraj Singh @ Hansa reported in (2016) 11 SCC 687 , Hon’ble the Supreme Court held that if an officer has to carry out search between sunset and sunrise, he must record the grounds of his beliefs under the second proviso to section 42(1) of the NDPS Act and the empowered officer who takes down any information in writing and records the ground under the proviso to section 42(1) must forthwith send a copy thereof to his immediate official superior. The Supreme Court held that total noncompliance with the provision would affect the case of the prosecution and the compliance is mandatory to that extent.

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The Seizing officer Babulal has been examined in trial as PW1, a perusal of which is revealing that the response to a pertinent question with regard to compliance of mandatory provision of the Act, officer has categorically replied that before affecting search, no notice under Section 50 of the NDPS Act was given to the accused. It is well settled legal position of law that the provision of Section 50 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, wherein it was held that non compliance of Section 50 could vitiate the recovery. The petitioner is behind the bars since 07.03.2020. In my considered view, the noncompliance 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 42 and 50 of the NDPS Act forms a point of consideration for this Court while entertaining a bail plea akin to the instant one. Needless to say, none of the observations made herein under shall affect the rights of either of the parties during trial and shall not influence the trial judge in any manner whatsoever while presiding over this matter. This Court is cognizant of the provision contained in Section 37 of the NDPS Act but considering the submissions made by learned counsel for the accused-petitioner regarding long incarceration pending trial as well as the fact that the mandatory provisions of the NDPS Act have not been complied with, 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 observations and comments

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can be made at this stage, as the same may influence the course of trial.

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Accordingly, the third 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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Mamta/147

Om Prakash Vishnoi Son of Bhikaram v. State of Rajasthan

Case brief

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Om Prakash Vishnoi Son of Bhikaram v. State of Rajasthan

Case brief

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