Order

19/09/2024

1. The applicant is under arrested in connection with crime registered pursuant to F.I.R. Number 344/2023 of Police Station Bhinmal District Jalore in respect of offence punishable under section(s) 8/15, 25 of Narcotic Drugs and Psychotropic Substances Act, 1985. They have approached this Court by way of these applications for bail under Section 439 Cr.P.C.

2. I have considered the rival submissions made by learned counsel for the applicants as well as learned public prosecutor and perused the record.

3. Learned Public Prosecutor for the State has strongly objected the different submissions made by learned counsel for the applicant and submitted that 9.400 Kgs. of contraband opium milk recovered in this matter falls within the ambit of commercial quantity and the bar as contained in Section 37 of the NDPS Act is attracted. It is further argued that there is overwhelming evidence adduced on record suggestive of the fact that bail petitioner indulges in illegal trade of narcotics; that the petitioner does not deserve any sympathy as the petitioner is a drug peddler. He thus, craves rejection of the applicants’ bail application.

4. I have given my anxious consideration to the rival submissions with reference to material placed before me.

5. On perusal of the record and upon consideration of the submissions, it would be prima facie clear that both the petitioners Chunni Lal and Budha Ram accompanied the co-accused Hanuman Ram in the same vehicle. Co-accused Hanuman has already been enlarged on bail by this Court vide order dated 28.08.2024 passed in S.B. Criminal Misc. Bail Application No.10320/2024 while observing as under:-

“6. On perusal of the record and upon consideration of the submissions, it would be prima facie clear that it is PW-1 Pratap Singh, the seizure officer has admitted in his cross- examination that Rameshwar Bhati was the regular SHO posted at the police station but the prosecution has not produced any evidence to support the fact that Bhati went on leave and that the charge of SHO was formally handed over to the seizure officer Pratap Singh. The seizure officer has clearly admitted during cross- examination that there is no document on record to prove that he was acting as the SHO on that day. Although he mentioned that such a report was recorded in the Rojnaamcha but he also conceded that no Rojnaamcha report is available in the file.

7. In view of the submissions made and upon a perusal of the challan, particularly, the list of witnesses, it is found that no superior officer, who authorised Pratap Singh to conduct the search and seizure proceedings, is cited in the list of witnesses. No authorisation in writing, empowering the Sub Inspector Pratap Singh, is available on the record. The complications of the facts narrated above can be viewed very seriously either to the prosecution or to the accused. If the accused is kept in custody and ultimately, he is acquitted on the ground of search and seizure being conducted by an unauthorised officer, the result would be that an offender though guilty of dealing in and being in possession of the huge quantity of narcotics would get scot free because of the grossly unauthorised act of the officer.

8. On the other hand, if the accused is convicted after a prolonged trial on this very ground, then, his detention in the case would thus, be questionable because of search and seizure proceedings are claimed to have been conducted by an unauthorised officer. Be that as it may, it shall be under an obligation to consider the aspect as to whether PW-1 Pratap Singh, the Sub Inspector was authorised to conduct the search and seizure proceedings in the case or not? However, the fact remains that in the instant case though a person who was not the SHO has effected the independent recovery and registered the FIR for the same. Thus, the argument raised by the learned counsel for the petitioner carries weight in light of“6. On perusal of the record and upon consideration of