ASAD AHMED Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The instant application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dtd. 16/11/2022 passed by the learned Special Judge, NDPS Act No. 2, Chittorgarh in Sessions Case No. 172/2019 whereby he was convicted under Ss. 8/15(c) of NDPS Act and sentenced to suffer maximum 10 years rigorous imprisonment along with a fine of Rs.1,00,000.00 and in default to further undergo two month of rigorous imprisonment.

(2.) It is contended on behalf of the applicant that the learned trial Judge has not appreciated the correct, legal and factual aspects of the matter and thus, reached at an erroneous conclusion of guilt, therefore, the same is required to be appreciated again by this Court being the First Appellate Court. He submits that the seizing officer had been informed about the presence of narcotic substance in the car of the petitioner before he left to conduct search and seizure, yet the seizing officer did not relay the above-mentioned information to the senior officers before proceeding further which is mandatory under Sec. 42 of NDPS Act and thus, the entire process of recovery stands vitiated on this count because of non-compliance of Sec. 42 of NDPS Act. He further submits that the seizing officer, while undertaking proceedings for search and seizure, was not posted as S.H.O. of the concerned Police Station. He vehemently contended that sub-sec. (1) of Sec. 42 of NDPS Act enumerates the power of officers specified therein who are duly empowered by the Central Government or the State Government as the case may be and as per the law, Sub Inspector is not empowered to effect search, seizure and arrest under the NDPS Act as the notification dtd. 16/10/1986 empowers only those Sub Inspectors of Police to exercise the powers under Sec. 42 of NDPS Act who are posted as State House Officers. Learned Counsel for the petitioner vehemently submits that the mandatory provisions of NDPS Act have not been complied with, thus, on this count, the recovery of the contraband is vitiated. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioner and he has been made an accused based on conjectures and surmises.

(3.) Per contra, learned Public Prosecutor opposes the bail application and submits that the alleged recovered contraband is way above the demarcated commercial quantity, thus, the impediment contained under Sec. 37 of NDPS Act will be attracted in the factual situation of the present case.