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2013 DIGILAW 1743 (RAJ)

Guman Singh v. State of Rajasthan

2013-09-27

SANDEEP MEHTA

body2013
JUDGMENT Hon'ble MEHTA, J.—The present bail application has been filed under Section 439 Cr.P.C. on behalf of the petitioner, who is in custody in connection with F.I.R. No.22/2011, Police Station Bhadsoda, District Chittorgarh, for the offences under Sections 8/15, 18 and 29 of the NDPS Act. 2. Briefly stated the facts of the case are that the Sub-Inspector Kamalchand Meena, who was posted at the Police Station Nimbahera and was allegedly holding charge of the SHO of the said Police Station, allegedly arrested an accused named Bhagirath Gurjar in relation to the FIR No.88/2011 registered at the Police Station Nimbahera for the offence under Section 8/15 of the NDPS Act. It is alleged that, Bhagirath the accused in the said FIR, gave an information to the Sub-Inspector regarding storage a poppy straw and opium at a house allegedly owned and controlled by the petitioner in the jurisdiction of Police Station Bhadsoda. The SHO thereupon noted the information in the Roznamcha. Thereafter, allegedly acting on the directions of the superior officers, the SHO framed a raid party and took the aid of certain Constables of the Police Station Bhadsoda and thereafter recovered contraband poppy straw weighting 156 kgs and opium weighing 9 kgs from the premises located in the territory of the Police Station Bhadsoda allegedly owned and controlled by the petitioner. On the basis of the recovery, an FIR No.22/2011 was registered at the Police Station Bhadsoda for the offences under Sections 8/15, 18 of the NDPS Act at the instance of Shri Kamalchand. The petitioner was arrested and has been charge-sheeted in the case. He is in custody since 25.7.2012. 3. Learned counsel for the petitioner praying for bail to the petitioner urges that the whole proceedings of search and seizure conducted by Shri Kamalchand in this case are absolutely illegal, unauthorised and without jurisdiction. He submits that the recovery has been effected from a residential premises and thus, the provisions of Section 42 of the NDPS Act would apply to the case. He submits that the Sub-Inspector Kamalchand was not posted as the SHO, Police Station Bhadsoda and thus, he was not authorized to act in relation to an information of concealment of contraband narcotic at a place falling within the territorial jurisdiction of the Police Station Bhadsoda. He submits that the Sub-Inspector Kamalchand was not posted as the SHO, Police Station Bhadsoda and thus, he was not authorized to act in relation to an information of concealment of contraband narcotic at a place falling within the territorial jurisdiction of the Police Station Bhadsoda. Learned counsel places reliance on the decision rendered by the Hon'ble Apex Court in the case of Roy V.D. vs. State of Kerala reported in AIR 2001 SC 137 in support of his contentions. He thus, prays that the petitioner deserves to be granted bail in this case. 4. Learned Public Prosecutor was directed to keep the Superintendence of Police, Chittorgarh present in the Court for explaining the apparently serious shortcoming. 5. The Superintendent of Police, Chittorgarh Shri R. Suhas is present in the Court. 6. Learned Public Prosecutor, who is assisted by the Superintendent of Police, Chittorgarh admits that a regular SHO was a posted and was available at the Police Station, Bhadsoda when the recover was effected by Shri Kamalchand in this case. Written submissions have been filed on behalf of the Superintendent of Police, Chittorgarh mentioning that a preliminary inquiry is proposed against the seizure officer in connection with the aforesaid FIR and after completing the due process of law, the result thereof shall be submitted before this Court for its perusal. 7. Learned Public Prosecutor however urges that the officer concerned was authorized by his superior officers to act under Section 41(2) of the NDPS Act. He refers to the seizure memo and points out that it is mentioned in the seizure memo that the officer was authorized by the superior officer in this regard. 8. On a perusal of the charge-sheet, particularly the list of witnesses, it is evident that no such superior officer, who authorized Shri Kamalchand Meena the Sub-Inspector to conduct the search and seizure proceedings is cited in the list of witnesses. No authorization in writing empowering Kamalchand to conduct the search and seizure proceedings is available on record. 9. The consequences of the facts narrated above can be very serious either ways, either to the prosecution or to the accused. No authorization in writing empowering Kamalchand to conduct the search and seizure proceedings is available on record. 9. The consequences of the facts narrated above can be very serious either ways, either to the prosecution or to the accused. If the accused is kept in custody and ultimately he is acquired on the ground of search and seizure being conducted by an unauthorized officer, the result would be, that an offender, though guilty of dealing in and being in possession of a huge quantity of narcotics would got scot-free because of the grossly unauthorized act of the officer. On the other hand, if the accused is acquitted after a prolonged trial on this very ground then, his detention in the case would itself be questionable because the search and seizure are claimed to have been conducted by an unauthorized officer. 10. Be that as it may, the trial Court is already seizing of the matter and it shall be under an obligation to consider the aspect as to whether Kamalchand Sub-Inspector was authorized to conduct the search and seizure proceedings in the case or not. Had it been a case where, the Sub-Inspector continued the investigation of the earlier FIR No.88/2011 and effected the recoveries in relation thereto, probably the argument, which is raised on behalf of the learned Public Prosecutor regarding in continuance of the cause of action would be relevant. However, the fact remains that in the instant case, the Sub-Inspector has effected an independent recovery and has registered a separate FIR for the same. It is admitted that only the Constables posted at the Police Sation Bhadsoda were associated in the search and seizure proceedings. The SHO Bhadsoda was very much available because it is he who received the FIR prepared by Shri Kamalchand after conducting the seizure. The proceedings as a matter of fact reflect in a way as if the Sub-Inspector on his own decided that the conduct of the officers at the Police Station Bhadsoda was not above board or that they were not competent to discharge the duties assigned to them. Thus, the argument raised by the learned counsel for the petitioner regarding the search and seizure proceedings having been conducted by a person, who was not authorized to do so carries weight in light of the mandatory provisions of Sections 41 and 42 of the NDPS Act. 11. Thus, the argument raised by the learned counsel for the petitioner regarding the search and seizure proceedings having been conducted by a person, who was not authorized to do so carries weight in light of the mandatory provisions of Sections 41 and 42 of the NDPS Act. 11. Be that as it may, as has been observed above, the inquiry in relation to the conduct of the Sub-Inspector is proposed as per the written submissions filed before this Court. The question regarding the search and seizure being illegal because the seizure officer was not authorized to do so and the effect of such proceedings on the trial of the case shall be considered by the trial Court at the appropriate stage. Comments by this Court at this stage on the veracity of the search and seizure proceedings and the merits of the case is bound to prejudice the trial. But at the same time, remaining alive to the mandatory provisions of Sections 41 and 42 of the NDPS Act, this Court is amply satisfied that the conditions of Section 37 of the NDPS Act are satisfied so as to entitle the accused to be released on bail in this case. For drawing this conclusion, this Court is aptly guided by the following observations made by the Hon'ble Apex Court in the case of Roy V.D. (supra) : "16. Now, it is plain that no officer other than an empowered officer can resort to Section 41(2) or exercise powers under Section 41(1) of the NDPS Act or make a complaint under clause 9d) of sub-section (1) of Section 36-A of the NDPS Act. It follows that any collection of material, detention or arrest of a person or search of a building or conveyance or seizure effected by an officer not being an empowered officer or an authorized officer under Section 41(2) of the NDPS Act, lacks sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of offences under Chapter IV of the NDPS Act and use of such a material by the prosecution vitiates the trial." 12. However, the observations made by this Court in this order shall not be construed to be a hurdle against the prosecution's right to prove by leading evidence that the officer concerned was authorized to conduct search and seizure in the case. 13. However, the observations made by this Court in this order shall not be construed to be a hurdle against the prosecution's right to prove by leading evidence that the officer concerned was authorized to conduct search and seizure in the case. 13. In this view of the matter, this Court is of the opinion that the bail application filed by the petitioner deserves to be accepted. 14. Consequently, the bail application is allowed. It is ordered that the accused-petitioner, Guman Singh arrested in connection with F.I.R. No.22/2011, Police Station Bhadsoda, District Chittorgarh shall be released on bail; provided he furnishes a personal bond of Rs.1,00,000/- and two surety bonds of Rs.50,000/- each to the satisfaction of the learned trial Court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so.