The court held that jurisdictional compliance under the NDPS Act is crucial, but evidence against the petitioner is sufficient to deny bail, with non-compliance issues to be addressed at trial.

ORDER :

1. This third application for bail under Section 439 Cr.P.C. (483 BNSS) has been filed by the petitioner who has been arrested in connection with F.I.R. No.60/2019, registered at Police Station Bigod, District Bhilwara for the offences under Sections 8/15 and 8/25 of the NDPS Act.

2. Learned counsel for the petitioner submitted that as per the prosecution, on 17.04.2019 on the basis of a Parcha Kayami (complaint) submitted by Shri Rajendra Tada, SHO of Police Station Kachhola, an FIR No.60/2019 was registered at Police Station Bigod, District Bhilwara as per which, on 17.04.2019, when as per the instructions of S.P. Bhilwara, the team of Police Station Bigod lead by its SHO was conducting nakabandi, the SHO of Police Station Bigod saw an unnumbered white coloured Bolero vehicle coming from Triveni towards NH758 and upon seeing the police team, the driver of the offending vehicle turned the same towards Jaliya. The SHO of Police Station Bigod immediately called Shri Rajendra Tada (SHO of Police Station Kachhola) and asked him to chase the offending vehicle as he suspected that the offending vehicle might be carrying contraband. Thereupon, the SHO of Police Station Kachhola as well as SHO of Police Station Bigod with their respective teams chased the offending vehicle which was going towards village Jaliya.

3. As per prosecution, after some time, the driver of the offending vehicle fled away on foot, leaving the offending vehicle behind. The SHO Police Station Kachhola after complying with the procedure provided under the NDPS Act made a search of the offending vehicle and recovered contraband (poppy husk/straw) weighing 186 kgs. from 9 plastic sacks and two sacks made of cloth.

4. Learned counsel for the petitioner submitted that the petitioner has been falsely implicated in the present case. Drawing attention of the Court towards the FIR, challan papers and so also the statements of the Seizure Officer Rajendra Tada recorded before competent criminal Court, learned counsel for the petitioner submitted that the place where the search and seizure proceedings were conducted, allegedly falls under the jurisdiction of Police Station Bigod. Learned counsel submitted that since SHO Police Station Kachhola had admittedly conducted the entire search and seizure proceedings, the same is not only without jurisdiction but is also in violation of Section 42(1) of the NDPS Act.

5. Learned counsel further submitted that admittedly, at the time when search and seizure proceedings were conducted, the offending vehicle was abandoned by its driver and was not in transit. According to learned counsel, since the offending vehicle was not in transit, the provisions contained in Section 42 of the NDPS Act ought to have been complied with.

6. According to learned counsel for the petitioner, the recovery of the contraband in the present case is vitiated for want of jurisdiction as well as due to non-compliance of the mandatory provisions contained in NDPS Act. The petitioner has been implicated in the present case solely on the basis of suspicion; the contraband has not been recovered from the conscious possession of the present petitioner. To buttress his arguments, attention of the Court was drawn towards the statements of Satyanarayan (P.W.-01), Rishi Raj (P.W.-07), Gopal Lal (P.W.-08) and Rajendra Tada (P.W.-10) recorded before the competent criminal Court.

7. Lastly, learned counsel for the petitioner submitted that the petitioner is in judicial custody since 29.11.2021; no recovery is due to be made from him; and investigation in the matter has already been completed. On these grounds, learned counsel implored the Court to enlarge the petitioner on bail.

8. Per Contra, learned Public Prosecutor has vehemently opposed the bail application. Learned Public Prosecutor submitted that in the present case, the contraband greater than commercial quantity has been recovered from a white coloured unnumbered Bolero vehicle. During the course of investigati