Rajasthan High Court - Jodhpur
Arjun vs Union Of India (2024:Rj-Jd:50661) on 10 December, 2024
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2024:RJ-JD:50661]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 12124/2024
Arjun S/o Shree Vinod, Aged About 19 Years, R/o Hadmatya
Kundal, Tehsil Chhoti Sadri, Dist. Pratapgarh (Presently Lodged
In Dist. Jail, Pratapgarh)
----Petitioner
Versus
Union Of India, Through CBN.
----Respondent
For Petitioner(s) : Mr. Shiv Kumar Bhati.
Mr. Ashutosh Sharma.
For Respondent(s) : Mr. K.S. Nahar, Spl. PP for CBN.
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order 10/12/2024 This application for bail under Section 483 of BNSS has been filed by the petitioner who has been arrested in connection with F.I.R. No.02/2024 registered at Police Station CBN Kota, for offences under Sections 8/15(c) and 29 of the NDPS Act.
Heard learned counsel for the petitioner and learned Special Public Prosecutor. Perused the material available on record.
The sole argument of the learned counsel for the petitioner is that the case of the present petitioner is not distinguishable from that of co-accused Jagdish (S.B. Cr. Misc. Bail Application No.10225/2024) who has already been enlarged on bail by a coordinate Bench of this Court vide order dated 28.08.2024.
The order dated 28.08.2024 is reproduced herein below for ready reference:
(Downloaded on 10/12/2024 at 09:50:55 PM)[2024:RJ-JD:50661] (2 of 6) [CRLMB-12124/2024] "1. The prayer made in this bail petition filed under section 483 of the BNSS (Section 439 of the old Code) is for grant of bail in respect of offence(s) punishable under Section(s) 8/15, 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. To begin at the beginning learned counsel representing petitioner has strongly argued that search and seizure was conducted between sunset and sunrise without complying with the provisions of Section 42(1) and (2) of the NDPS Act. There is non-
compliance of mandatory procedure of seizure and sample, which prima facie renders the seizure illegal. Another important argument contended is that the petitioner is a heart patient who has been undergoing treatment for a long time, prior to arrest. Even while in custody, his treatment for heart disease is ongoing. Inviting the Court's attention to his medical record, it has been argued that there is no possibility of receiving adequate and proper treatment in jail. With the aforesaid submissions, it was prayed that the present petition be allowed and petitioner may been larged on bail. Learned counsel for the petitioner fortified the above made submissions by placing reliance on the following judgments: -
(I) Smt. Najmunisha Vs. The State of Gujarat And Ors., (2024) 4 SCR 442
(ii) Chhunna @ Mehtab Vs. State of M.P., 2003 SCC (Cri) 1194
(iii) Vijay Kumar VS Narendra & Ors., 2003 SCC (Cri) 1195
(iv) Kewal Singh Rajput Vs. State of Rajasthan, (2017) 2 Cri.L.R. 556
(v) Man Bhadur Vs. State of Goa, 1996 Cri.L.R. 1389
(vi) State of Rajasthan Vs. Jag Raj Singh @ Hansa AIR 2016 Supreme Court 3041
(vii) Gangaram Rama Gundkar & Anr. Vs. State of Maharashtra 2002 ALLMr (CRI) 1356
(viii) Vijaysinh Chandubha Jadeja Vs. State of Gujarat 2010 AIR SCW 6843
(ix) Mahammed Khalid & Anr. Vs. The State of Telangana 2024(1) Crimes 204 (SC)
(x) Surinder Kumar Khanna Vs. Intelligence Officer, Director of Revenue Intelligence 2018 (3) CCSC 1404 (SC)
(xi) Mohammed Fasrin Vs. State, represented by Intelligence Officer 2020 (1) CCSC 257 (SC)
(xii) Kanhaiyalal Vs. Union of India AIR 2008 SC 1044
(xiii) Kumar @ Ranjithkumar Vs. State 2019 CRI.L.J. 4312 (Downloaded on 10/12/2024 at 09:50:55 PM) [2024:RJ-JD:50661] (3 of 6) [CRLMB-12124/2024]
3. Learned Public Prosecutor has submitted reply to the petition and denied all the averments made therein. He opposed release of the petitioner on bail on the ground that 138.100 Kgs. Of contraband poppy straw recovered from the applicant falls with in the ambit of commercial quantity and the bar as contained in Section 37 of the NDPS Act is attracted. Contraband was also recovered from the possession of other persons at the same spot.
At the time of seizure, the superintendent of the department was present on the spot as a member of the seizure team. The seizure action was taken under his instructions therefore, there was no need for the seizure officer Himanshu Shekhawat to obtain written authorization. He submits that seizure was is in consonance with the procedure and the discrepancies pointed out by the learned counsel for the petitioner cannot be considered at this stage and ought to be determined only after trial; that investigating officer had collected overwhelming evidence in the case which would prima-facie point towards the guilt of the accused; that keeping in view the gravity of offence petitioner deserve any leniency rather he needs to be dealt with severely. He thus, craves rejection of the petitioner's bail application.
4. This Court has carefully perused the record as well as considered the submissions made by learned counsels for the parties.
5. A perusal of the evidence available on record would prima facie show that in the present case, admittedly search and seizure action were taken at 11:00 PM i.e. between sunset and sunrise, by a sub-inspector who was not a gazetted officer. Due to the search and seizure being conducted at night, exception to sub- section 1 of Section 42 of NDPS Act, as well as sub-section 2 of Section 42 comes into play.
6. The material available on record reveals that above provision has not been followed in the case. The secret information from the informer was received by the Bureau's office in Kota at 4:00 pm on 16.01 2024. In such a situation, a search warrant could have been obtained immediately from the magistrate working in Kota or authorization from the competent officers of the Bureau. If the officer conducting the seizure believed that during the time of undertaking this action, the accused might flee or destroy the evidence then according to the provisions of the Act, it was necessary for him to record in writing the reasons for his belief. However, these reasons were not recorded by him, which is prima facie a violation of the required legal procedure.
7. Argument of learned counsel for the prosecution that the Superintendent of the Department, who was a gazetted officer, was present with the seizure team at the time of seizure, hence it was not necessary for seizure officer Sub Inspector Himanshu Shekhawat to obtain written authorization, is not tenable. In considered opinion of the Court, for a seizure of contraband in the night by an officer in the rank of sub inspector to be lawful, it is essential that legal requirement of obtaining written authorization or recording of reason of belief is strictly adhered to. The presence of Superintendent does not override the necessity for formal documentation. The failure to obtain such written authorization or recording of reason of belief, prima facie makes the seizure not (Downloaded on 10/12/2024 at 09:50:55 PM) [2024:RJ-JD:50661] (4 of 6) [CRLMB-12124/2024] according to law, as it does not comply with the established legal procedures indicating a serious procedural flaw.
8. When Himanshu Shekhawat, the sub inspector of CBN undertakes the action of seizing a contraband, legal and procedural protocols must be meticulously followed to ensure that the seizure is lawful. The law typically mandates certain powers to certain officers. Seizure of contraband by non-gazetted officer scan only be exercised when they have explicit written authorization. This requirement ensures that the seizure officer is acting within the scope of their legal powers. Without authorization, the authority of the seizure officer to conduct the seizure could be questioned. Even though the superintendent was physically present at the time of the seizure but his presence does not substitute for the need for written authorization as verbal consent or mere presence does not satisfy legal standards. By bypassing the requirement for written authorization, the seizure officer, even if acting under the superintendent's verbal directive, has prima facie contravened established legal procedures. In that view of the matter, the petitioner has available himself a substantial ground so as to challenge the case of the prosecution. The exception provides that if the search and seizure action is to be taken at night and the seizure officer has reason to believe that obtaining of a search warrant or authorization may give the accused an opportunity to escape or conceal/destroy the evidence, then the officer may proceed with the search and seizure however, the officer must record in writing the reasons for such belief i.e. make a memo of his such belief before taking action.
9. At this stage, taking note of all these aspects I do not intent to go into the merits of the matter but having given anxious consideration to the rival submissions with reference to material placed before me and the fact that applicant a heard patient and is in custody since the last 17.01.2024; that the rigor of Section 37 of the N.D.P.S. act is duly satisfied, forasmuch this court feels that the applicant has available to him substantial grounds so as to question the prosecution case; that trial is likely to take its own considerable time and no useful purpose would be served by keeping the applicant in detention for an indefinite period therefore, I am inclined to grant indulgence of bail to the petitioner at this stage.
10. Consequently, the present bail application is allowed and it is directed that the accused-petitioner Jagdish S/o Shri Ratan Lal, arrested in connection with the F.I.R. No. 02/2024, registered at Police Station CBN Kota shall be released on bail provided he furnishes a personal bond and two surety bonds of sufficient amount to the satisfaction of the learned trial court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so. This order is subject to the condition that accused, within 7 days of his release, and sureties on the day of furnishing bail, will also furnish details of their all bank accounts, with bank and branch name, in shape of an affidavit, and submit legible copy of their Aadhar cards as well as copy of front page of Bank pass book, for smooth recovery of (Downloaded on 10/12/2024 at 09:50:55 PM) [2024:RJ-JD:50661] (5 of 6) [CRLMB-12124/2024] penalty amount, if there arise a need for recovery of penalty under Section 446 Cr.P.C in future."
Learned counsel submitted that the petitioner is in judicial custody and the trial of the case is likely to consume sufficiently long time. On these grounds, he implored the Court to enlarge the petitioner on bail.
Per contra, learned Public Prosecutor has opposed the bail application. However, he was not in position to refute the fact that the case of the present petitioner is not distinguishable from that of co-accused Jagdish who has already been enlarged on bail by a coordinate Bench of this Court vide order dated 28.08.2024.
Having considered the rival submissions, facts and circumstances of the case and the fact that above named co-
accused person has already been enlarged on bail but, without expressing any opinion on merits/demerits of the case, this Court is inclined to enlarge the petitioner on bail.
Consequently, the bail application under Section 483 of BNSS is allowed. It is ordered that the accused-petitioner Arjun S/o Shree Vinod arrested in connection with F.I.R. No.02/2024 registered at Police Station CBN Kota, shall be released on bail, if not wanted in any other case, provided he furnishes a personal bond of Rs.1,00,000/- and two sureties of Rs.50,000/- each, to the satisfaction of learned trial court, for his appearance before that court on each & every date of hearing and whenever called upon to do so till completion of the trial.
(Downloaded on 10/12/2024 at 09:50:55 PM)[2024:RJ-JD:50661] (6 of 6) [CRLMB-12124/2024] It is however, made clear that findings recorded/observations made above are for limited purposes of adjudication of bail application. The trial court shall not get prejudiced by the same.
(KULDEEP MATHUR),J 255-Tikam/-
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