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2022 DIGILAW 1333 (RAJ)

Karudas v. State Of Rajasthan

2022-04-27

MAHENDAR KUMAR GOYAL

body2022
JUDGMENT 1. The present second bail application has been filed under Section 439 Cr.P.C. The petitioner has been arrested in connection with FIR No.216/2021 registered at Police Station Nai Mandi Hindaun, District Karauli for the offence under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, 'the Act of 1985') and later on for the offence under Section(s) 8/21 & 8/25 of the Act of 1985. 2. Learned counsel for the petitioner submitted that there has been non-compliance of the provisions of Section 50 of the Act of 1985 as no option was furnished to the accused-petitioner to get the search conducted in presence of a Gazetted Officer or Magistrate. He, in support of his submissions, relies upon an Apex Court judgment dated 28.02.2014 in case of State of Rajasthan v. Parmanand & Anr.: Criminal Appeal No.78/2005 as well as co-ordinate Bench orders of this Court dated 28.07.2020 in SB Criminal Misc. Bail Application No.7820/2020: Ranjeet Singh v. State of Rajasthan and dated 06.07.2021 in SB Criminal Misc. Bail Application No.7818/2020: Virendra v. State of Rajasthan. He, therefore, prays for benefit of bail for the petitioner. 3. Per contra, learned Public Prosecutor opposing the prayer submitted that since the contraband of commercial quantity was recovered from a bag being carried out by the petitioner, compliance of Section 50 was not mandatory. He further submitted that since search was conducted without any prior information as contemplated under Section 42 of the Act, requirement of Section 50 was not attracted. He, in support of his submissions, relies upon a Constitution Bench judgment in case of State of Punjab v. Baldev Singh: (1999) 6 SCC 172 and a judgment of Hon'ble Apex Court in case of Kanhaiya Lal v. State of M.P.: (2000) 10 SCC 380 . 4. Heard. Considered. 5. The first bail application filed by the petitioner was dismissed by this Court vide its order dated 21.06.2021 after appreciating the rival submissions made by the learned counsels for the respective parties. Thereafter, charge sheet has been filed against the petitioner. Insofar as compliance of Section 50 is concerned, firstly, this Court finds that search of the bag found in possession of the petitioner was conducted by the Investigating Agency without any prior information under Section 42 of the Act of 1985 and the contraband was found during its search of bag. Thereafter, charge sheet has been filed against the petitioner. Insofar as compliance of Section 50 is concerned, firstly, this Court finds that search of the bag found in possession of the petitioner was conducted by the Investigating Agency without any prior information under Section 42 of the Act of 1985 and the contraband was found during its search of bag. The Hon'ble Apex Court has, in case of Kanhaiya Lal (supra), held that where the contraband is found from a bag being carried out by the accused and not from his person, compliance of Section 50 is not required. In view of recovery of commercial quantity of contraband, this Court is not inclined to extend the petitioner benefit of bail in the backdrop of the provisions of Section 37 of the Act of 1985. 6. The second bail application is dismissed accordingly.