In a significant decision, the Rajasthan High Court has granted bail to three petitioners—Satya Narayan, Ram Narain, and Prabhulal—who were arrested under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The case revolves around the recovery of 3.150 kg of opium from the vehicle they were travelling in. The arrest was made based on FIR No. 207/2023, registered at Police Station Kotwali, Nimbahera, District Chittorgarh. The petitions were filed under sections 8/18 of the NDPS Act. The court found serious procedural lapses in the search and seizure operations, leading to the granting of bail.
Background of the Case:
On April 29, 2023, during routine patrolling and a blockade at Nimbahera, Rajasthan, Sub-Inspector Ashwini Kumar, who was acting as the Station House Officer (SHO), intercepted vehicle No. MP-44-CB-1892, which carried the petitioners. Upon searching the vehicle, the police found 3.150 kg of opium, leading to the arrest of Satya Narayan, Ram Narain, and Prabhulal.
However, the defense raised substantial legal issues, focusing on the procedural shortcomings during the search and seizure, particularly regarding the mandatory requirements under Section 50 of the NDPS Act. This section ensures that an accused has the right to be informed about being searched in the presence of a Gazetted Officer or a Magistrate.
Legal Issues Involved:
The main legal contention in the case revolved around the procedural violations during the search and seizure:
1. Non-compliance with Section 50 of the NDPS Act: The defense argued that the petitioners were not informed about their right to be searched in the presence of a Gazetted Officer or Magistrate, which is a mandatory safeguard under Section 50 of the Act. The notices issued during the search were inadequate, as they only mentioned the necessity of the search without offering the choice of having the search conducted in the presence of a Gazetted Officer or a Magistrate.
2. Unauthorized Officer Conducting the Search: The defense further argued that Ashwini Kumar, the Sub-Inspector who conducted the search, was not the designated SHO at the time. The regular SHO, Phool Chand, was posted at the police station, but there was no documentation proving that Ashwini Kumar had formally taken charge as the SHO. Under Sections 41 and 42 of the NDPS Act, only an SHO is authorized to carry out such procedures. This lapse rendered the entire search and seizure operation unauthorized and illegal.
Court’s Observations and Decision:
Justice Rajendra Prakash Soni, who presided over the matter, thoroughly reviewed the case and found that the procedural safeguards under the NDPS Act were not followed. The court highlighted that the search notice issued to the petitioners failed to inform them of their right to be searched before a Gazetted Officer or Magistrate, which is a critical right under Section 50 of the Act.
In his judgment, Justice Soni noted:
“The offer to search in terms of Section 50 of the NDPS Act must contain both the options, i.e., to be searched in the presence of a Gazetted Officer or a Magistrate. The main purpose behind the requirement of making the offer is to make the person aware of his rights under the law.”
The court further observed that Ashwini Kumar, who conducted the search, was not the authorized SHO. No written authorization was found in the records to support that Ashwini Kumar had the power to act as the SHO on the day of the incident, making the search unauthorized under the NDPS Act. The court referred to the Supreme Court’s decision in Roy V. D. Vs. State of Kerala (AIR 2001 SC 137), which held that any search conducted by an unauthorized officer is inherently illegal.
Considering these procedural lapses, the court concluded that the petitioners had made out a strong prima facie case against the prosecution. The petitioners had been in custody since April 2023, and the trial was expected to take considerable time. Thus, the court granted bail to the accused.
The court directed the release of Satya Narayan, Ram Narain, and Prabhulal on bail, subject to furnishing a personal bond and two sureties. The court also imposed the condition that the petitioners submit their bank account details and copies of their Aadhar cards within seven days of their release for future reference in case of any penalty under Section 446 of the CrPC.
Parties Involved:
– Petitioners: Satya Narayan S/o Bapu Lal Gurjar, Ram Narain S/o Onkar Lal Dangi, Prabhulal S/o Motilal Dangi
– Respondent: State of Rajasthan
Lawyers:
– For the Petitioners: Mr. Shekhar Mewara, Mr. B Ray Bishnoi, Mr. Navneet Poonia for Abhimanyu Singh Ranawat
– For the Respondent: Mr. Narendra Singh Chandawat (Public Prosecutor), Mr. Shrawan Singh (Public Prosecutor)
