RASHID Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This is bail application seeking bail for the two accused-petitioners in the case which was registered and in which a charge-sheet has been filed under the provisions of Narcotic Drugs And Psychotropic Substances Act, 1985(for short, the NDand PS Act).

(2.) The facts of the case in brief are these. One Bhishm Dev, Sub-Inspector Jhalawar camp Khanpur of the Narcotics Department received information from Mukhbir and sought instructions from Shri J. S. Negi, Superintendent, Control Room Kota, on keeping a watch near Ghati of Doongar village, it is alleged, that at about 12-30 p.m. three persons were seen carrying black rexine bag to be proceeding on road. They were asked to stop, but they made attempt to run away. One of them, namely Laxminarain, ran away throwing the bag and the other two persons were stopped. It is alleged that the persons who were stopped disclosed their names and also the name of' the person who ran away. On being asked whether they want the search to be conducted before a Magistrate or a gazette officer, they are said to have told that they want that search should be conducted before a Panch. Search was taken, and from the bags which was thrown by Laxminarain more than 6 kg. opium was recovered. On the bags from the two persons opium weighing more then 5 kg and 3 kg were recovered. Samples were taken and sent to chemical analysis and on chemical analysis the samples were found to be of opium. Thereafter, a complaint was filed against the accused-petitioners and Laxmimarain .The two accused-petitioners applied for bail before the learned Sessions Judge, Jhalawar who under his order dated 26/10/1989 dismissed their bail application.

(3.) The contention of the learned counsel for the petitioners is that there has been contravention of S. 42 of ND and PS Act inasmuch as required by S. 42 of the aforesaid Act 'reason to believe' that an offence punishable under Chapter IV has been committed was not recorded and this renders the entire search illegal. Learned counsel does not dispute that in view of the Notification No. SO.822(E) Notification No. 6/85 F. No. 664/51/85 published in Gazette of India Exty.Pt.(ii)(3)(ii)P1162 dated 14/11/1985, Sub-Inspector of Narcotic Department was authorised to take search, seize and arrest without warrant any person, if he had reason to believe that an offence under Chapter IV of the ND andPS Act has been committed. The aforesaid Notification reads as under :