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IN THE HIGH COURT OF RAJASTHAN
SANDEEP MEHTA, J.
Kayum and Ors. - Appellants
Versus
State of Rajasthan - Respondent
S.B. Criminal Misc. Bail Application Nos. 95 and 94 of 2021
Decided On : 25-01-2021
BAIL - NDPS ACT - SECTION 37 - COURT HELD THAT THE MANDATORY REQUIREMENT OF SECTION 37 OF THE NDPS ACT WAS NOT COMPLIED WITH AND HENCE, THE BAIL APPLICATION WAS DISMISSED.
Fact of the Case:
The petitioners, Kayum and Jabbar Husain, were arrested in connection with an FIR registered under Sections 8/18, 8/21 & 8/29 of the NDPS Act and Section 3/25 of the Arms Act for the alleged possession of 700 gms of heroin, 1 Kg of opium, a country-made pistol, and cartridges. The petitioners filed a bail application, arguing that the recovery of contraband was in violation of Sections 41, 42, and 50 of the NDPS Act and that the percentage of morphine was not mentioned in the FSL report.
Finding of the Court:
The court held that the mandatory requirement of Section 37 of the NDPS Act, which requires the court to record a satisfaction that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offence while on bail, was not complied with. The court also held that the admission made by the Seizure Officer in cross-examination that each accused had an equal share in the recovered contraband was not admissible in evidence and that the search and seizure was valid as it was made while exercising powers under Section 43 of the NDPS Act.
Issues: 1. Whether the mandatory requirement of Section 37 of the NDPS Act was complied with? 2. Whether the admission made by the Seizure Officer in cross-examination that each accused had an equal share in the recovered contraband was admissible in evidence? 3. Whether the search and seizure was valid?
Ratio Decidendi: 1. The court held that the mandatory requirement of Section 37 of the NDPS Act was not complied with as the court did not record a satisfaction that there were reasonable grounds for believing that the accused was not guilty and was not likely to commit any offence while on bail. 2. The court held that the admission made by the Seizure Officer in cross-examination that each accused had an equal share in the recovered contraband was not admissible in evidence as it was hit by Section 25 of the Evidence Act and was not admissible for any purpose whatsoever. 3. The court held that the search and seizure was valid as it was made while exercising powers under Section 43 of the NDPS Act and not during the personal search of an individual.
Final Decision: The bail application was dismissed as being devoid of merit.
JUDGMENT :
Sandeep Mehta, J.
1. Two bail applications have been filed on behalf of the accused Kayum. Shri R.N. Bishnoi, Advocate, who presented the Bail Application No. 94/2021 on behalf of the accused Kayum after submission of the bail application No. 95/2021 by Shri B.R. Godara, prays that he may be allowed to withdraw the same. Accordingly, the Bail Application No. 94/2021 is dismissed as withdrawn.
2. The bail application No. 95/2021 has been filed on behalf of the petitioners Kayum and Jabbar Husain who are in custody in connection with F.I.R. No. 144/2019, registered at Police Station Lohawat, District Jodhpur for the offences under Sections 8/18, 8/21 & 8/29 of the NDPS Act and Section 3/25 of the Arms Act.
3. Brief facts relevant and essential for disposal of the case are noted herein below:
4. The SHO, Police Station Lohawat received a source information regarding transportation of narcotics in a car on which, a nakabandi was undertaken at the Jodhpur-Phalodi Road near the Panchayat Samiti, Lohawat. At about 06.45 pm., an Alto Car No. MP-09-WB-0640 came near the nakabandi and was flagged down. Four persons were present in the car namely Iqbal, Kayum, Toshib and Jabbar Husain. As the car was suspected to be carrying narcotics, its search was undertaken. On opening the hood of the car, just underneath the dashboard, five plastic packets were found concealed. The first packet was containing opium weighing 1 Kg. The second packet was containing brown coloured powder suspected to be heroin which weighed 700 gms. with the packaging. The third packet contained a country-made pistol without licence. The fourth packet contained 40 cartridges of 7.65 mm. each and the fifth packet was containing 10 cartridges of 8 mm. each. On the basis of the above recovery, FIR No. 144/2019 came to be registered against the petitioners and two others for the offences under Sections 8/18 & 21 of the NDPS Act and Section 3/25 of the Arms Act.
5. The instant bail application has been filed on the ground that the Seizure Officer (P.W. 1) Sunil Tada admitted in his cross-examination that each of the accused had an equal share in the recovered brown sugar and thus, the net weight of the brown sugar attributable to each accused would be 175 gms. only, which is below commercial quantity. Learned counsel has further urged that the Seizure Officer breached the mandatory requirement of Section 50 of the NDPS Act as the third option for search was given to the accused. It was further submitted that as the search and seizure was undertaken after sunset, the investigating officer was under an obligation to comply with the mandatory requirement of Sections 41 and 42 of the NDPS Act which were not followed and thus, the entire search and seizure proceedings are vitiated. It was further contended that percentage of morphine has not been mentioned in the FSL report while examining the sample of brown sugar and as such, no conclusion can be drawn that the recovered contraband smack/heroin/brown sugar falls within the meaning of manufactured drug as defined in Section 2(xvi) of the NDPS Act. It was further contended that the bail applications of similarly situated co-accused Iqbal and Toshib have been accepted by Coordinate Bench of this Court and thus, the petitioners also deserve indulgence of bail under Section 439 Cr.P.C. on parity.
6. Learned Public Prosecutor, on the other hand, vehemently and fervently opposed the submissions advanced by the petitioners' counsel. He pointed out that the recovery of contraband was effected from a vehicle in transit and thus, provisions of Section 50 of the NDPS Act would have no application because it is not a case involving recovery of contraband during personal search of the accused. It was further submitted that as the recovery was from a vehicle in transit, provisions of Section 43 of the NDPS Act would operate and there was no requirement for the Seizure Officer to comply with the provisions of Section 50 of the NDPS Act or
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