Order

15/01/2025 These bail applications under Sections 483 BNSS have been filed on behalf of the petitioners herein who have been arrested in connection with FIR No.92/2024 PS Badi, District Dholpur for offences under Sections 8, 20 of the NDPS Act. After completion of investigation, police has filed charge sheet in the court concerned.

Learned counsel for the accused petitioners submit that the accused petitioners have falsely been implicated in this case. It is contended that provisions of Section 42 of NDPS Act have not been complied with properly. Section 42 provides power of a police officer of making entry, search, seizure and arrest without warrant or authorisation in any building, conveyance or enclosed place between sunrise and sunset, if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or the possibility of escape of the suspect after recording the reasons in writing. The police officer may enter and search such building, conveyance or enclosed place at any time between sun set and sun rise after recording the grounds of his belief. Where an officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto, he has to forthwith send a copy thereof to his immediate official superior.

Learned counsel argue that as per the prosecution case, alleged recovery of contraband Ganja was effected from one Car (No.RJ 11 UA 4866) in the intervening night of 12.03.2024 and 13.03.2024. The accused petitioner Jitendra @ Jeetu was arrested from the spot. It is submitted that as soon as, it came to the knowledge of the police team that it is a case of recovery of narcotic drugs and psychotropic substance, it was incumbent upon the police party to follow the provisions of NDPS Act but no memo in terms of Section 42 of the NDPS Act was prepared by the seizure officer. Reliance has been placed on judgment passed by Hon’ble Supreme Court in the case of State of Orissa vs Laxman Jena, reported in 2009 Vol.16 SCC 332.

Secondly, it is argued that as per the prosecution story, the seal used by the seizure officer in recovery proceedings was destroyed at the spot and separate memo (Fard Nashtikaran) to this effect was prepared on 13.03.2024 itself. However, surprisingly, even after destroying of the said seal, on a later date i.e., 21.03.2024. the impression of the seal is appearing in the malkhana register, which creates doubt on the prosecution case. The Seizure Officer Shiv Lahari (PW.1) in his cross-examination also failed to give any reasonable answer in this respect. Apart from above, it is contended that proceedings carried out in terms of Section 52 (A) of the NDPS Act are also vitiated as it is clear from the proceedings, placed on record, that the jurisdictional magistrate did not examine the recovered contraband on his own and while relying on the statements of the seizure officer, samples were drawn. It is contended that as per the material available on record, 25 grams of contraband from each packet was taken out and three samples of 500 Grams each were prepared. Thereafter test samples (A1, A2 and A3) and control samples (B1, B2 and B3) were prepared. Lastly, they submit that the petitioners do not have any criminal antecedents under the NDPS Act. The accused petitioner Jitendra @ Jeetu is in custody since 13.03.2024 whereas accused petitioner Babi @ Baubi Khan is in custody since 26.07.2024. Investigation has been completed and charge sheet has been filed in the court concerned whereas trial will take time in its conclusion. They submit that further custody of the petitioners would not serve any fruitful purpose.

Per contra, learned Public Prosecutor opposes the bail applications and submits that huge quantity of the contraband has been recovered and therefore, considering the rigour of Section 37 of the NDPS Act, bail should not be granted to the accused petitioner