Allowed

Kamlesh v. State of Rajasthan

Rajasthan HC3 Apr 2024CRLMB/1388/2024

Case brief

AI extract

What is this about?

Rajasthan High Court allowed bail to twopetitioners accused under NDPS Act, holding that procedural flaws including non-empowered seizing officer and failure to take samples in magistrate's presence render FSL report inadmissible and warrant bail.

What did the court decide?

Bail granted on bond of Rs. 50,000 with two sureties of Rs. 25,000 each to appear before trial court.

Kamlesh Vs State of Rajasthan — Narcotics (NDPS) | Rajasthan HC (2024)

¶1

[2024:RJ-JD:17369]

¶2

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶3

S.B. Criminal Miscellaneous 2^nd Bail Application No. 2365/2024

¶4

Vinod S/o Shri Rameshwarlal, Aged About 32 Years, R/o Chupna, P.s. Arnod, Dist. Pratapgarh (At Present Lodged In Dist. Jail Pratapgarh).

¶5

----Petitioner

¶6

Versus

¶7

State Of Rajasthan, Through Pp

¶8

----Respondent

¶9

Connected With

¶10

S.B. Criminal Miscellaneous 2^nd Bail Application No. 1388/2024 Kamlesh S/o Shri Ramchandra, Aged About 42 Years, R/o Tanda, Arnod Police Station, Dist. Pratapgarh. (Confined In Dist. Jail, Pratapgarh)

¶11

----Petitioner

¶12

Versus

¶13

State Of Rajasthan, Through Pp

¶14

----Respondent

¶15

For Petitioner(s)	: Mr. Ramesh Purohit
	Mr. Vishal Gurjar
For Respondent(s)	: Mr. Arun Kumar,PP

¶16

HON'BLE MR. JUSTICE FARJAND ALI

¶17

Order

¶18

03/04/2024

¶19

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:

¶20

S.No.		Particulars of the Case
1.	FIR Number	155/2022

(2 of 9)

[2024:RJ-JD:17369]

[CRLMB-2365/2024]

2.	Concerned Police Station	Arnod
3.	District	Pratapgarh
4.	Offences alleged in the FIR	Sections 8/15 & 29 of NDPS Act.
5.	Offences added,if any	---
6.	Date of passing of impugned order	15.01.2024

¶25

The first bail applications of the petitioners were dismissed as not pressed vide order dated 30.10.2023 (S.B. Criminal Misc. Bail Application Nos.12501/2023 & 11061/2023) but a liberty was afforded to them to renew the prayer for bail after the statements of Investigating Officer and Seizing Officer are recorded. Now, the statements of both Investigating Officer and Seizing Officer are recorded. Hence, these bail applications.

¶26

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. They submit that the seizing officer, 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, a SubInspector 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

[2024:RJ-JD:17369]

[CRLMB-2365/2024]

(3 of 9)

Officers. Learned counsel for the petitioners 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 accusedpetitioners and they have been made an accused based on conjectures and surmises.

¶31

Contrary to the submissions of learned counsel for the petitioners, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail.

¶32

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. Rajveer 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 Shanti Lal was the SHO posted at the concerned police station and he was second in command. He has further stated that whenever a senior officer posted at a police station is present in the area falling under the jurisdiction of that police station, then he is the in-charge of that police station and has admitted that the then SHO was in fact, present in the jurisdictional area of the concerned police station. He has further admitted that there is nothing in writing, neither on record nor in the Roznamcha, which can prove the fact that the SHO handed over the charge of the police station to him. Now,

[2024:RJ-JD:17369]

[CRLMB-2365/2024]

(4 of 9)

this court deems it appropriate to discuss the law prevalent in the matter.

¶37

The NDPS Act is a statute comprising of stringent provisions which need to be followed in letter and in spirit and noncompliance of any stipulations specially the ones relating to the procedure followed during search, seizure and arrest, cannot be overlooked.

¶38

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/85I, dated 16-10-86 as to who are authorised to do so.

¶39

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

[2024:RJ-JD:17369]

[CRLMB-2365/2024]

(5 of 9)

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.

¶44

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:-

¶45

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

¶46

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.

¶47

Hon’ble the Supreme Court passed a landmark judgment in the case of Roy V.D. Vs. State of Kerala reported in AIR 2001 SC 137 wherein, in a similar situation, it was observed as under:-

¶48

Now, it is plain that no officer other than an empowered officer can resort to Section 41(2) or exercise powers under Section 42(1) of the Narcotic Drugs & Psychotropic Substances Act or make a complaint under Clause (d) of Sub-section (1) of Section 36A of the Narcotic Drugs & Psychotropic Substances Act. If follows that any collection of material, detention or arrest of a person or search of a building or conveyance or seizure effected by an officer not being an empowered officer or an authorised officer under Section 41(2) of the Narcotic

(6 of 9)

[2024:RJ-JD:17369]

[CRLMB-2365/2024]

Drugs & Psychotropic Substances Act, lacks sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of offences under Chapter IV of the Narcotic Drugs &Psychotropic Substances Act and use of such a material by the prosecution vitiates the trial.

¶53

It is well settled that the power under Section 482 of the Cr.P.C. has to be exercised by the High Court, inter alia, to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence bases on such material butal so the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of the process of the court; in such a case not quashing the proceedings would perpetuate abuse of the process of the court resulting in great hardship and injustice to the accused. In our opinion, exercise of power under Section 482 of the Cr. P.C. to quash proceedings in a case like the one on hand, would indeed secure the ends of justice.

¶54

In light of the judgments cited above, the notification

¶55

passed by the State government in this regard as well as the provision contained in Section 42 of the NDPS Act, this Court is of the view that the non-compliance of mandatory provisions of the NDPS Act has to be dealt with a strict hand and it is imperative upon the courts to be cautious while adjudicating such matters where seizure is concerned under the NDPS Act as no accused should be able to walk scot-free for want of proper implementation and following of the procedure established by law.

[2024:RJ-JD:17369]

[CRLMB-2365/2024]

(7 of 9)

It is further revealing from the record that the samples were taken by the Seizing Officer at the time of making search and marked as A1 to A14. The same samples were sent to the FSL for detection of morphine and its derivatives.

¶60

It is an admitted situation that the samples which were taken by the Seizing Officer from the spot on 26.04.2022 were sent to the FSL for chemical examination, the same were not taken in the presence of the Magistrate. Apparently, the guidelines issued by the Government vide Standings Order Nos.1/1988 & 1/1989 as well as the mandate of law contained under Section 52-A of the NDPS Act have not been complied with. Admittedly, no samples were taken in the presence of Magistrate whereas the samples taken at the spot were sent to the FSL. In this view of the matter it can be said that the samples sent to the FSL and the report of the FSL in this regard is nothing but is a waste paper as propounded in a judgment titled as Mohammed Khalid and another Vs. The State of Telangana passed by Hon’ble the Supreme Court in Criminal Appeal No(S). 1610 Of 2023 dated 01.03.2024, it was held that since no proceedings were undertaken for preparing of inventory and drawings of samples as per Section 52-A of NDPS Act, thus, the FSL was considered to be waste and was not considered worthy of being read in evidence on the basis of this inter alia other aspects, Hon’ble the Apex Court acquitted the appellants of all charges. The relevant paragraph of the above judgment is reproduced as under:-

[2024:RJ-JD:17369]

[CRLMB-2365/2024]

(8 of 9)

“22. Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer PW-5 for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. In this view of the matter, the FSL report(Exhibit P11) is nothing but a waste paper and cannot be read in evidence.”

¶65

At the stage of hearing of a bail plea pending trial, although

¶66

this Court is not supposed to make any definite opinion or observation with regard to the discrepancy and legal defect appearing in the case of prosecution as the same may put a serious dent on the State’s case yet at the same time, this Court can not shut its eye towards the non-compliance of the mandatory provision, around one and half years of incarceration pending trial, failure of compliance with the procedure of sampling and seizure and the serious issue of competence of seizure officer. In the case of Mohd. Muslim @ Hussain Vs. State (NCT of Delhi) passed by Hon’ble the Supreme Court in Special Leave Petition (Crl.) No.915 of 2023 vide order dated 28.03.2023, it has been propounded that at the stage of hearing a bail application under Section 439 Cr.P.C., although it is not possible to make a definite opinion that he is not guilty of the alleged crime but for the limited purpose for the justifiable disposal of the bail application, a tentative opinion can be formed that the material brought on record is not sufficient enough to attract the embargo contained under Section 37 of the NDPS Act. Though specific arguments have not been conveyed but looking to the fact that the accused is in custody, this court feels that the accused is not supposed to establish a case in support of his innocence rather his detention is required to be justified at the

[2024:RJ-JD:17369]

[CRLMB-2365/2024]

(9 of 9)

instance of the prosecution, therefore, this court went deep into the facts of the case and the manner in which the entire proceedings have been undertaken. If other surrounding factors align in consonance with the statutory stipulations, the personal liberty of an individual can not encroached upon by keeping him behind the bars for an indefinite period of time pending trial. In view of the above, it is deemed suitable to grant the benefit of bail to the petitioners.

¶71

Accordingly, the instant bail applications under Section 439 Cr.P.C. are allowed and it is ordered that the accused-petitioners shall be enlarged on bail provided each of them 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 their appearance before the court concerned on all the dates of hearing as and when called upon to do so.

¶72

(FARJAND ALI),J

¶73

69-Mamta/-

Kamlesh v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Kamlesh v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sukhdeep Singh @ Sandeep Singh Vs State of Rajasthan

Kamalsingh Vs State of Rajasthan

Lucky Vs State of Rajasthan

Indra Chand Vs State

Mrs Meena Vs State and Ors.

Sardar Singh Vs State of Rajasthan