Seizure Under NDPS Act – No Accused Should Be Able To Walk Scot-Free For Want Of Proper Implementation Of Due Procedure: Rajasthan HC

While considering an application for bail filed under Section 439 CrPC on behalf of the petitioner who is in custody in relation to an FIR registered for the offence under Section 8/21 of the NDPS Act, the Rajasthan High Court approved the bail application and held that life & liberty of an individual is so sacrosanct that it cannot be allowed to be interfered with except under the authority of law.

A Single Judge Bench of Justice Farjand Ali observed that “the non-compliance of mandatory provisions of the NDPS Act has to be dealt with a strict hand and it is imperative upon the courts to be cautious while adjudicating such matters where seizure is concerned under the NDPS Act as no accused should be able to walk scot-free for want of proper implementation and following of the procedure established by law”.

Advocate O.P Joshi appeared for the Petitioner, whereas Advocate Mukhtiyar Khan appeared for the Respondent.

The brief facts of the case were that the first bail application came to be rejected by while giving liberty to the petitioner to renew his prayer after the statement of Investigating Officer is recorded in the trial. Since the statement of prosecution witness was recorded by the Trial Court, the present bail application had been preferred. The Counsel for the petitioner submitted that the seizing officer, while undertaking proceedings for search & seizure, was not posted as SHO of the concerned police station, and therefore, was not empowered to effect search, seizure, and arrest under the NDPS Act. Thus, it was claimed that the recovery of the contraband was vitiated.

The counsel for Respondent however opposed the prayer of petitioner and contended that the matter pertains to recovery of 100 Bottles of Moncof cough syrup, and thus, the impediment contained under Section 37 of NDPS Act will be attracted.

After considering the submission, the Bench noted that NDPS Act is a statute comprising of stringent provisions which need to be followed in letter and in spirit and noncompliance of any stipulations specially the ones relating to the procedure followed during search, seizure, and arrest, cannot be overlooked.

The Bench highlighted that Chapter V of the NDPS Act specifically provides that only the officers mentioned and empowered therein can give an authorisation to a subordinate to arrest and search if such officer has reason to believe about the commission of an offence and after reducing the information, if any, into writing.

As per Section 42, the Bench pointed that only officers mentioned therein and so empowered can make the arrest or search as provided if they have reason to believe from personal knowledge or information.

“The specific rank of the officer and ‘reason to believe’ are two important requirements that are needed to be complied with necessarily. Firstly, the Magistrate or the Officers mentioned therein are empowered and secondly, they must have reason to believe that an offence under Chapter IV has been committed or that such arrest or search was necessary for other purposes mentioned in the Act”, added the Bench.

The Bench went on to observe that so far as the first requirement is concerned, the legislature intended that only certain Magistrates and certain Officers of higher rank are empowered and can act to effect the arrest or search.

Because the sub-inspector is posted as SHO at certain police stations, the Bench found that the authorization has been conferred upon the sub-inspector to make search and seizure but obviously with the specific stipulation that he should be posted as SHO.

But in the present matter, the Bench pointed that the same has not been done as the sub-inspector was not posted as the SHO rather the head constable who was actually posted as the SHO by Rajveer Singh had further delegated his charge to the S.I.

“According to the on-oath statement of PW-3, Rajveer Singh, it is revealed that he had left the police station and given the charge of the police station to head constable Hanuman and the said head constable further gave the charge to sub-inspector Bhanwar Lal. He is also present in person before this court and stands by his statement. It is further deposed therein that Rajveer Singh took back the charge of the station from head constable Hanuman which further reflects that Bhanwar Lal did not have any official charge”, added the Bench.

The High Court therefore ordered that the accused-petitioner shall be enlarged on bail provided he furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the trial Judge.

Cause Title: Ashok v. State of Rajasthan [Neutral Citation: 2023: RJ-JD: 26686]

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