MANGI LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The instant bail application under Section 439 Cr.P.C., 1973 is laid by petitioner upon his arrest pursuant to FIR No.6/2017 of Police Station Dangiyawas, Jodhpur. In the FIR, petitioner was charged for offence under Section 8/18 of the NDPS Act. After conclusion of investigation, charge sheet against the petitioner is filed for offence under Section 8/18 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act').

(2.) Arguing on this bail application, learned Senior Counsel has contended that while conducting search at the residence of the petitioner upon receiving information that illegally procured opium (contraband) is available at that place, the officer duly authorized has flagrantly violated Section 50 of the NDPS Act. Mr. Bora would contend that, in fact, during search neither any nearest Gazetted Officer nor nearest Magistrate was present and therefore the search proceedings is clearly vitiated in law. Learned Senior Counsel submits that mere mentioning in the notice so as to ask the petitioner to permit search in presence of a Gazetted Officer or a Magistrate and then seeking his nod to allow the authorized officer to make search would not attract the exceptions carved out under Section 100 Cr.P.C., 1973 Learned Senior Counsel has further submitted that the officer while taking down any information under sub-section (1) of Section 42 has not endorsed its copy to his immediate superior officer within 24 hours is yet another mitigating circumstance for grant of bail to the petitioner inasmuch as this sort of omission on the part of officer has violated mandatory provision under sub-section (2) of Section 42 of the NDPS Act. Learned Senior Counsel has urged that cumulative effect of violation of Sections 42 and 50 of the NDPS Act entitles the petitioner for grant of bail. Learned Senior Counsel, while taking a dig at the recovery memos, prepared during investigation, has argued that these memos are farce as the same are signed by Constables as Motbirs. Lastly, learned Senior Counsel has urged that petitioner is in custody since 4th of February 2017 and after investigation charge-sheet in the matter has been filed. In support of his arguments, learned Senior Counsel has placed reliance on following legal precedents:

(3.) Per contra, learned Public Prosecutor has vehemently opposed bail application of the petitioner. It is argued by learned Public Prosecutor that search of the residential premises of petitioner was conducted upon receiving information and during search huge quantity of opium weighing approximately 19 kg 800 gm was recovered. Learned Public Prosecutor submits that petitioner himself volunteered to get his residential premises searched by authorized officer without presence of a Gazetted Officer or a Magistrate, is sufficient to presume that it is a case of violation of Section 50 of the NDPS Act. Alternatively, learned Public Prosecutor has submitted that Section 50 of the NDPS Act is attracted in the instant case. Lastly, learned Public Prosecutor has urged that huge quantity of opium is recovered from the residential premises of petitioner, which is umpteen times above the commercial quantity, and therefore, rigor of Section 37 of the NDPS Act is clearly attracted in the instant case so as to thwart his bail plea.