Advocates:
['SD PUROHIT', '', 'SP BISSA', 'SMT PUSHPA VYAS', 'RS MALI', 'PP']

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Criminal Misc(Pet.) No. 3073 / 2014

1. Gopal S/o Shri Bhanwar Lal, by caste Gadari, R/o Aakya,

District Mandsaur (M.P.)

2. Satyanarayan @ Bablu S/o Shri Ramchandra, by caste Balai,

R/o Malyakhedi, Mandsaur (M.P.).

3. Pankaj S/o Shri Devi Lal, by caste Jat, R/o Pipalkhunt,

Mandsaur (M.P.)

4. Shiv Lal S/o Shri Bheru Lal, by caste Jat, R/o Pipalkhunt,

Mandsaur (M.P.)

----Petitioners

Versus

State of Rajasthan.

----Respondent

_____________________________________________________

For Petitioner(s) : Mr. S.D. Purohit with Mr. Ravi Purohit

For Respondent(s) : Mr. V.S. Rajpurohit, PP for the State

_____________________________________________________

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

01/09/2017

1.

The petitioners have preferred this criminal misc.

petition under Section 482 Cr.P.C. for quashing the criminal

proceedings against the petitioners pursuant to the charge sheet

No.75/2012 dated 05.03.2012 arising out of FIR No.552/2011

registered at Police Station Nimbahera, for the offence under

Section 8/18, 25 & 29 of the Narcotic Drugs and Psychotropic

Substance Act, 1985 (hereinafter referred to as ‘the NDPS Act’).

2.

The criminal proceedings were initiated against the

petitioners pursuant to the charge sheet No.75/2012 dated

03.03.2012 arising out of FIR No.552/2011 at Police Station

(2 of 25)

[CRLMP-3073/2014]

Nimbaheda for the offences under Sections 8/18, 25 & 29 of the

NDPS Act. The criminal proceedings are going on against the

present petitioners before learned Special Judge (NDPS Act

Cases), Chittorgarh.

3.

The brief facts of the case as noticed by this Court are

that on 10.09.2011, a police team headed by Sub-Inspector Kamal

Chand of Police Station Nimbaheda alongwith other Head

Constables and Constables conducted a Nakabandi in which a

Maruti Zen Car bearing registration No.MP09 HB 3330 coming

from Neemuch was stopped by Kamal Chand, Sub-Inspector.

When the said car did not stop, it was forced to stop and on

search in front of independent Motbir, it was revealed that there

was a plastic bag containing three polythene bags having

contraband weighing 14 kilograms along with two samples of 30

grams each separately. And the remaining articles and samples

were sealed. All the four petitioners were arrested and given a

notice under Section 52 of the NDPS Act. Six persons were taken

to the police station where a case No.552/2011 for the offence

under Section 8/18 of the NDPS Act was registered and the seized

articles were deposited in the Malkhana. The petitioners have been

charge-sheeted for the offences under Sections 8/18 & 8/25 of the

NDPS Act. The criminal trial is going on after registration of

criminal case No.22/2012.

4.

At the outset, learned counsel for the petitioner has

confined his arguments that the proceedings were initiated by

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[CRLMP-3073/2014]

Kamal Chand, Sub-Inspector who was not posted as Station House

Officer but was holding the post of Station House Officer in the

absence of Station House Officer and thus, was not empowered to

make search and seizure under the NDPS Act. The bail

applications moved by the petitioners were allowed by a

coordinate Bench of this Court vide order dated 30.07.2017. The

bail order is a speaking order and the sole reason for granting the

bail was the proceedings being conducted by Kamal Chand, Sub-

Inspector who was not empowered and ought to have brought the

petitioner before the competent officers. The order dated

30.07.2012 passed by a coordinate Bench of this Court reads as

follows:

“Heard learned counsel for the petitioners and the

learned Public Prosecutor and perused the material

available on record.

The contention of the present petitioner is that they

have been implicated falsely and the proceedings have