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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
RAJENDRA PRAKASH SONI, J.
Satya Narayan S/o Bapu Lal Gurjar – Appellant
Versus
State Of Rajasthan, Through PP - Respondent
S.B. Criminal Miscellaneous 2nd Bail Application No. 11651/2024, S.B. Criminal Miscellaneous Bail Application No. 15291/2023, S.B. Criminal Miscellaneous Bail Application No. 2910/2024
Decided on : 26-09-2024
Bail - Narcotic Drugs and Psychotropic Substances Act - Sections 37, 41, 42, 50 - The court emphasized the mandatory nature of Section 50 regarding informing rights during searches, and the necessity for proper authorization under Sections 41 and 42, leading to the conclusion that the search was unauthorized.
Fact of the Case:
The petitioners were arrested for possession of contraband opium during a police search. They contended that the search violated Section 50 of the NDPS Act, as they were not informed of their rights, and the officer conducting the search lacked proper authorization.
Finding of the Court:
The court found that the search and seizure were conducted without compliance with Section 50, as the petitioners were not informed of their rights. Additionally, the officer conducting the search was not authorized, rendering the search illegal.
Issues: Whether the search and seizure conducted by the police were lawful under the NDPS Act, particularly regarding compliance with Section 50 and the authority of the officer conducting the search.
Ratio Decidendi: The court held that non-compliance with Section 50 of the NDPS Act and lack of proper authorization for the officer conducting the search rendered the search and seizure illegal, thus entitling the petitioners to bail.
Result: The bail applications were allowed, and the petitioners were granted bail.
ORDER :
1. The Petitioners are arrested and detained in F.I.R No.207/2023 registered at Police station Kotwali Nimbahera, District Chittorgarh pertaining to offence punishable under sections 8/18 of the Narcotic Drugs and Psychotropic Substances Act (For short “the Act”) and by these petitions, they seek restoration of their liberty on bail-bond.
2. Post recording of statement of investigating officer, present is second bail petition on behalf of petitioner Satya Narayan, whereas first petition from other petitioners.
3. Briefly narrated, facts of case of prosecution is that on 29.04.2023, during patrolling and a blockade, Ashwini Kumar Sub-Inspector and acting SHO of Police Station Kotwali Nimbahera intercepted a vehicle No.MP-44-CB-1892. Upon questioning, three individuals namely Prabhulal, Satya Narayan and Ram Narayan were found sitting in the vehicle. The search of vehicle led to the recovery of 3.150 kgs of contraband of opium. After filing of the charge sheet, statements of recovery officer and Investigating Officer has already been recorded during the trial.
4. I have appreciated the submissions advanced by the learned defence counsel and learned Public Prosecutor and have carefully perused the material available on record.
5. Learned counsels appearing for the petitioners have strongly contended that provisions of Section 50 of the NDPS Act were not followed during search and seizure proceedings and search was conducted without informing the petitioners of their rights, which constitutes violation of mandatory procedural safeguard. Non-compliance of Section 50 of the NDPS Act undermines the probity of search and seizure which renders it illegal. It is further contended that search and seizure was conducted by an police officer, who was not authorized under NDPS. According to him, only SHO of Police Station has legal authority to carry out these procedures. The search conducted by second officer of the police station is a procedural illegality which also renders the search illegal, as second officer Ashwini Kumar was not having legal and valid charge of post of SHO. On the strength of above arguments, they prayed that petitioners have availed themselves a strong prima facie case to question the case of prosecution making them entitle for bail.
6. Learned Public Prosecutor for the State has strongly objected the different submissions made by learned counsel for the applicants and submitted that 3.150 Kgs. of contraband opium recovered from the applicants falls within the ambit of commercial quantity and the bar as contained in Section 37 of the NDPS Act is attracted. Therefore, petitioners do not deserve to be released on bail.
7. I have given my anxious consideration to the rival submissions with reference to material placed before me.
8. It is seen that, during the trial, statements of Seizure Officer Ashwini Kumar (PW-1) and Investigating Officer Virendra Singh (PW-2) have already been record.
9. On perusal of record and upon consideration of the submissions, it would be clear that during search and seizure proceedings, notices under section 50 of the Act were issued by the seizure officer to the petitioners which reads as under:-
10. The contents of above very important notice issued during search, make it clear that prima-facie there is non-compliance of provisions of section 50 of NDPS Act, since notices under section 50 of the Act issued to the petitioners do not mention any of option or about the rights of petitioners. It only mentions about necessity which proves that seizure officer Ashwini Kumar (PW-1) has not complied with mandatory requirements of section 50 of NDPS Act as no option for search, containing rights of petitioners, was given to the petitioners. It prima facie renders search and seizure prima-facie questionable.
11. When such is the importance of a right given to an accused in custody, the right by way of safeguard conferred under Section 50 of the Act is more important and valuable. Therefore, it is to be
The court established that strict adherence to procedural safeguards under the NDPS Act is essential, particularly regarding informing individuals of their rights during searches.
Procedural compliance in searches under the NDPS Act is crucial; failure to inform the accused of their rights can invalidate the search and affect the prosecution's case.
Strict compliance with the statutory procedure and the stringent provisions of the NDPS Act are crucial in determining the admissibility of evidence and granting bail, despite the quantity of contrab....
Non-compliance with mandatory provisions of the NDPS Act regarding authorized officers conducting searches renders the recovery illegal, prioritizing the fundamental right to a speedy trial over stat....
Strict adherence to the NDPS Act's provisions regarding search and seizure is essential; non-compliance invalidates the recovery and affects the legality of proceedings.
Mandatory provisions of the NDPS Act must be strictly followed; non-compliance can lead to quashing of proceedings, and the right to a speedy trial takes precedence over statutory bail restrictions.
Only authorized officers can conduct searches and seizures under the NDPS Act; non-compliance with statutory procedures warrants bail.
Procedural irregularities in search and seizure under the NDPS Act justify granting bail, emphasizing constitutional rights and necessity for compliance with statutory mandates.
Point of Law- It is pertinent to note that in the bail application the appellants, it was alleged, that there was serious violation of Section 42 of the NDPS Act. In the impugned order nothing is sta....
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