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HIGH COURT OF RAJASTHAN (JODHPUR BENCH)
MR. JUSTICE KULDEEP MATHUR, J
MAHENDRA KUMAR – Appellant
Versus
UNION OF INDIA – Respondent
CRLMB / 2374 / 2025
(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 8, 15, 29, and 37 - Bail application filed under Section 483 of BNSS for accused arrested under NDPS Act - Co-accused granted bail, petitioner seeks similar relief - Court finds procedural flaws in search and seizure, emphasizing necessity of written authorization for night operations - Petitioner’s health condition considered - Bail granted. (Paras 1, 3, 9, 10)
(B) Legal Procedure - Compliance with mandatory procedures for search and seizure under NDPS Act is essential - Failure to adhere to legal requirements can render seizure unlawful. (Paras 5, 7, 8)
Facts of the case:
The petitioner was arrested in connection with F.I.R. No.02/2024 for offenses under the NDPS Act. Co-accused persons have been granted bail, and the petitioner argues for similar treatment due to prolonged judicial custody and health issues. (Paras 1, 3, 4)
Findings of Court:
The court finds substantial grounds for questioning the prosecution's case due to procedural violations in the seizure process and the petitioner's health condition. (Paras 9, 10)
Issues: The main issues addressed include the legality of the search and seizure process and the petitioner’s eligibility for bail in light of co-accused being granted bail. (Paras 3, 9)
Ratio Decidendi: The court ruled that the failure to obtain written authorization for night seizures constitutes a serious procedural flaw, impacting the legality of the seizure and justifying bail. (Paras 5, 7, 9)
Result: Bail application allowed.
ORDER :
KULDEEP MATHUR, J.
1. 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, District Kota for the offence under Section 8/15 & 29 of the NDPS Act.
2. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the material available on record.
3. Learned counsel submitted that the case of the present petitioner is not distinguishable from that of the co-accused persons namely Jagdish (S.B. Criminal Miscellaneous Bail Application No.10225/2024), Nand Kishore (S.B. Criminal Miscellaneous Bail Application No.13373/2024), Bhajjan Lal (S.B. Criminal Miscellaneous Bail Application No.13374/2024) and Arjun (S.B. Criminal Miscellaneous Bail Application No.12124/2024) who have already been enlarged on bail by this Court vide orders dated 28.08.2024, 21.01.2025 and 10.12.2024 respectively.
4. Lastly, learned counsel for the petitioner submitted that the petitioner is in judicial custody and the trial of the case will take sufficiently long time, therefore, the benefit of bail may be granted to the accused-petitioner.
5. Per contra, learned Special Public Prosecutor for the respondent CBN, Sh. K.S. Nahar has opposed the bail application. However, he was not in a position to refute the fact that the above named co-accused persons have already been enlarged on bail by this Court.
6. Heard learned counsel for the parties at Bar and perused the order dated 28.08.2024 passed by the co-ordinate Bench of this Court while granting bail to the co-accused Jagdish S/o Sh. Ratan Lal. The order dated 28.08.2024 is reproduced hereinbelow for ready reference:-
“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 be enlarged 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
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
Compliance with mandatory procedures for search and seizure under the NDPS Act is essential; failure to adhere can render the seizure unlawful.
The court emphasized that failure to comply with mandatory search and seizure procedures under the NDPS Act can lead to the granting of bail, especially when co-accused are similarly treated.
The court ruled that the petitioners were not in conscious possession of contraband and satisfied the conditions for bail under the NDPS Act.
Compliance with Section 52-A of the NDPS Act is essential for evidence validity; prolonged judicial custody without trial examination raises constitutional concerns, allowing bail despite stringent N....
The court granted bail due to lack of evidence against the petitioner and the lengthy trial duration, emphasizing the need for substantial grounds to question the prosecution's case.
The court ruled that searches conducted by unauthorized officers under the NDPS Act are illegal, warranting the grant of bail due to prolonged detention without trial.
Non-compliance with mandatory provisions of the NDPS Act, specifically Section 42, vitiates the recovery of narcotics and affects the prosecution's case, allowing for bail.
The court granted bail due to lack of evidence against the petitioner and the prior bail granted to co-accused, emphasizing the importance of these factors in bail considerations.
Bail under Section 37 of the NDPS Act requires clear evidence of innocence and no likelihood of reoffending, especially for serious crimes.
The court ruled that unauthorized searches under the NDPS Act invalidate the evidence, warranting bail for the accused due to procedural non-compliance.
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