Rajasthan High Court – Jodhpur
Arjun vs State Of Rajasthan on 15 July, 2026
[2026:RJ-JP:31367]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 3320/2025
CNR: RJHC010220122025
URN: CRLMB / 7290U / 2025
Arjun S/o Hariram Ji, Aged About 23 Years, R/o Peethawas,
Police Station Dangiyawas, Dist. Jodhpur (Rajasthan).
(Presently Lodged At Sub Jail, Bali)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Bhagirath Ray Bishnoi
For Respondent(s) : Mr. Hathi Singh Jodha, PP
HON'BLE MR. JUSTICE SANDEEP SHAH
Order
REPORTABLE
1. Date of conclusion of arguments 14/07/2026
2. Date on which judgment was reserved 14/07/2026
3. Whether the full judgment or only the
operative part is pronounced: Full Judgment
4. Date of pronouncement 15.07.2026
1. The applicant has filed the present bail application under
Section 483 of BNSS being aggrieved against the order dated
29.01.2025 passed by the learned Additional Sessions Judge,
Desuri, District Pali in Criminal Misc. Application No.20/2025,
whereby the bail application filed by the accused-applicant under
Section 483 B.N.S.S. was rejected. The accused-applicant is
behind the bars, pursuant to the F.I.R. No.24/2024 registered at
Police Station Desuri, District Pali against the accused-applicant
for offences punishable under Sections 8/15 and 29 of NDPS Act
1985.
2. The brief facts of the case are that on 12.02.2024, during a
regular Nakabandi/blockade being undertaken, the police officials
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left the Police Station premises at 4:50 AM and commenced the
Nakabandi/blockade. At around 5:00 AM, a secret information was
received by the SHO, Ravindra Pal Singh, to the effect that a
pickup vehicle carrying poppy husk, along with a small car
escorting the same, was about to travel from Charbhuja to Nadol,
and therefore, appropriate proceedings be undertaken. Based
upon the said information, Head Constable Kanaram, posted at
Police Chowki, Ghanerao, was informed and directed to reach the
place of Nakabandi/blockade, where he arrived at 5:15 AM. During
the Nakabandi/blockade, at around 5:20 AM, a Baleno car was
seen approaching, which was stopped. Upon being intercepted,
the driver disclosed his name as Surender Singh, while the co-
occupant disclosed his name as Dewa Ram. Upon checking the
mobile phone of the driver, it was found that several calls had
been made to one particular number and, upon being questioned
in this regard, he refused to divulge any information. In the
meanwhile, at around 5:23 AM, a white-coloured pickup bearing
Registration No. RJ-19 GC-7267 was seen approaching. However,
upon noticing the police officials, the driver suddenly attempted to
take a U-turn, whereupon the police officials chased the pickup in
their government vehicle and simultaneously informed the toll
booth as well as the Police Control Room, Pali, regarding the chase
being undertaken.
2.1 Ultimately, the pickup was overtaken by the police vehicle.
However, in the meanwhile, two occupants of the vehicle ran away
except for the driver. Upon being asked, the driver disclosed his
name as Arjun son of Hariram, and further informed that the
persons who had fled were Dinesh son of Hiraram, and Gopal
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Dewasi. He further disclosed that the pickup contained a few sacks
of poppy husk. Thereafter, the police officials served a notice
under Section 50 of the Act of 1985 upon the accused-applicant
and searched him and the vehicle. Upon search, 162.800 kg of
poppy husk was recovered from the vehicle in question. It was
further found that the accused-applicant was not only the driver
but also the owner of the vehicle in question.
2.2 The accused-applicant was thereafter arrested and the FIR in
question came to be registered. Upon completion of the
investigation, the charge-sheet has been filed and, as of now, the
trial is yet to commence inasmuch as the charges have not been
framed. The same is apparent from the communications dated
30.01.2026 and 29.05.2026 sent by the learned Trial Court to the
Deputy Registrar of this Court in response to the information
sought by this Court regarding the stage of the trial. It has been
informed therein that the matter is pending consideration on
account of the non-service of the arrest warrant upon co-accused
Devaram, whose bail bonds had been forfeited long back and who
has not been apprehended since then.
3. Learned counsel for the applicant raises two primary
grounds. Firstly, that there is non-compliance of the mandatory
provisions of Section 42 of the Act of 1985, inasmuch as no
information was forwarded to the superior officers under Section
42(2). He further submits that there is also non-compliance of
Section 42(1), as no authorization was obtained for undertaking
the search, which admittedly was conducted between sunset and
sunrise. Secondly, he submits that the case in hand is also one of
long incarceration, inasmuch as the accused-applicant was
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arrested on 12.02.2024, and till date, the trial has not even
commenced, with no fault attributable to the accused-applicant in
this regard. He submits that the accused-applicant has neither
delayed the trial nor contributed to any such delay. He further
submits that the accused-applicant does not have any criminal
antecedents, and therefore, if enlarged on bail, there is no
apprehension of his getting involved in any kind of criminal activity
whatsoever. He, therefore, implores this Court to allow the bail
application of the accused-applicant.
4. Per contra, learned Public Prosecutor opposes the bail
application and submits that the case in hand is one of chance
recovery, and therefore, the provisions of Section 42 would not
apply. He further submits that since a commercial quantity of the
narcotic substance has been recovered, the embargo contained
under Section 37 of the Act of 1985 would apply with full rigour,
and the accused-applicant has not been able to satisfy the twin
conditions as envisaged under Section 37 of the Act of 1985.
5. Heard learned counsel for the applicant as well as the
learned Public Prosecutor and perused the material available on
record.
6. As regards the argument with regard to applicability of
Section 42 of the Act of 1985, is concerned, it will be trite to quote
Section 42 of the Act of 1985, which provides as under:-
“42. Power of entry, search, seizure and arrest
without warrant or authorisation.–
(1) Any such officer (being an officer superior in rank
to a peon, sepoy or constable) of the departments of
central excise, narcotics, customs, revenue intelligence or
any other department of the Central Government
including paramilitary forces or armed forces as is(Uploaded on 15/07/2026 at 04:55:06 PM)
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[2026:RJ-JP:31367] (5 of 11) [CRLMB-3320/2025]empowered in this behalf by general or special order by
the Central Government, or any such officer (being an
officer superior in rank to a peon, sepoy or constable) of
the revenue, drugs control, excise, police or any other
department of a State Government as is empowered in
this behalf by general or special order of the State
Government, if he has reason to believe from persons
knowledge or information given by any person and taken
down in writing that any narcotic drug, or psychotropic
substance, or controlled substance in respect of which an
offence punishable under this Act has been committed or
any document or other article which may furnish evidence
of the commission of such offence or any illegally acquired
property or any document or other article which may
furnish evidence of holding any illegally acquired property
which is liable for seizure or freezing or forfeiture under
Chapter VA of this Act is kept or concealed in any
building, conveyance or enclosed place, may between
sunrise and sunset,–
(a) enter into and search any such building,
conveyance or place;
(b) in case of resistance, break open any door
and remove any obstacle to such entry;
(c) seize such drug or substance and all
materials used in the manufacture thereof and
any other article and any animal or conveyance
which he has reason to believe to be liable to
confiscation under this Act and any document or
other article which he has reason to believe may
furnish evidence of the commission of any offence
punishable under this Act or furnish evidence of
holding any illegally acquired property which is
liable for seizure or freezing or forfeiture under
Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper,
arrest any person whom he has reason to believe
to have committed any offence punishable under
this Act:
Provided that in respect of holder of a licence for
manufacture of manufactured drugs or psychotropic
substances or controlled substances granted under this
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[2026:RJ-JP:31367] (6 of 11) [CRLMB-3320/2025]shall be exercised by an officer not below the rank of sub-
inspector.
Provided further that if such officer has reason to believe
that a search warrant or authorisation cannot be obtained
without affording opportunity for the concealment of
evidence or facility for the escape of an offender, he may
enter and search such building, conveyance or enclosed
place at any time between sunset and sunrise after
recording the grounds of his belief.
(2) Where an officer takes down any information in
writing under sub-section (1) or records grounds for his
belief under the proviso thereto, he shall within seventy-
two hours send a copy thereof to his immediate official
superior.”
6.1 A perusal of the same will reveal that, if the Officer
authorized is having any reason to believe from personal
knowledge or information given by any person and, taken
down in writing that Narcotic Drug or Psychotropic
Substance or Controlled Substance in respect of which an
offense punishable under this Act has been committed or
other ancillary aspects qua the same, then he can between
sunset and sunrise, enter into the premises, break open the
door, undertake seizure of the contraband, detention and search,
and arrest of the person concerned. Thus, it is clear that the
powers envisaged under Section 42(1) of the Act of 1985 are
ordinarily to be exercised between sunrise and sunset. If such
search or seizure is to be undertaken between sunset and sunrise,
then the arrest warrant or the authorization contemplated under
Section 41 of the Act of 1985 is mandatory. However, the proviso
to Section 42(1) of the Act of 1985 provides that where the officer
concerned has reason to believe that a warrant or authorization
cannot be obtained without affording an opportunity for the
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concealment of evidence or the escape of the offender, he may
undertake the search at any time between sunset and sunrise
after recording the grounds of such belief. Section 42(2) further
provides that where such grounds of belief have been recorded, a
copy thereof shall be forwarded to the immediate superior officer
within a period of 72 hours.
6.2 Needless to emphasize, the compliance of Section 42 of the
Act of 1985 has, time and again, been held to be mandatory by
the Hon’ble Apex Court after considering the scheme and
provisions of the NDPS Act, 1985. The Constitution Bench of the
Hon’ble Apex Court, in the case of Karnail Singh v. State of
Haryana, (2009) 8 SCC 539, held as under:-
“35. In conclusion, what is to be noticed is that Abdul
Rashid did not require literal compliance with the
requirements of Sections 42(1) and 42(2) nor did Sajan
Abraham hold that the requirements of Sections 42(1) and
42(2) need not be fulfilled at all. The effect of the two
decisions was as follows:
(a) The officer on receiving the information [of the nature
referred to in sub-section (1) of Section 42] from any
person had to record it in writing in the register concerned
and forthwith send a copy to his immediate official
superior, before proceeding to take action in terms of
clauses (a) to (d) of Section 42(1).
(b) But if the information was received when the officer
was not in the police station, but while he was on the
move either on patrol duty or otherwise, either by mobile
phone, or other means, and the information calls for
immediate action and any delay would have resulted in
the goods or evidence being removed or destroyed, it
would not be feasible or practical to take down in writing
the information given to him, in such a situation, he could
take action as per clauses (a) to (d) of Section 42(1) and
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[2026:RJ-JP:31367] (8 of 11) [CRLMB-3320/2025]information in writing and forthwith inform the same to
the official superior.
(c) In other words, the compliance with the requirements
of Sections 42(1) and 42(2) in regard to writing down the
information received and sending a copy thereof to the
superior officer, should normally precede the entry, search
and seizure by the officer. But in special circumstances
involving emergent situations, the recording of the
information in writing and sending a copy thereof to the
official superior may get postponed by a reasonable
period, that is, after the search, entry and seizure. The
question is one of urgency and expediency.
(d) While total non-compliance with requirements of sub-
sections (1) and (2) of Section 42 is impermissible,
delayed compliance with satisfactory explanation about
the delay will be acceptable compliance with Section 42.
To illustrate, if any delay may result in the accused
escaping or the goods or evidence being destroyed or
removed, not recording in writing the information
received, before initiating action, or non-sending of a copy
of such information to the official superior forthwith, may
not be treated as violation of Section 42. But if the
information was received when the police officer was in
the police station with sufficient time to take action, and if
the police officer fails to record in writing the information
received, or fails to send a copy thereof, to the official
superior, then it will be a suspicious circumstance being a
clear violation of Section 42 of the Act. Similarly, where
the police officer does not record the information at all,
and does not inform the official superior at all, then also it
will be a clear violation of Section 42 of the Act. Whether
there is adequate or substantial compliance with Section
42 or not is a question of fact to be decided in each case.
The above position got strengthened with the amendment
to Section 42 by Act 9 of 2001.”
6.3 The Hon’ble Apex Court has also dealt with a contingency, as
in the present case, where the information is received by the
officer while he is not present at the Police Station but is on patrol
duty or otherwise on the move. Even in such circumstances,
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delayed communication of the information has been held to be
permissible. However, total non-compliance has been held to be
impermissible.
7. Coming to the facts of the present case, a perusal of the
secret information recorded at 5:00 AM by the officer concerned
reveals that the same was received at 5:00 AM. At the relevant
time, the SHO concerned was not present at the place where the
Nakabandi/blockade was being undertaken and, thereafter,
directed Head Constable Kanaram, posted at Police Chowki,
Ghanerao, to reach the site of the Nakabandi/blockade, whereafter
the vehicle in question came to be intercepted. A bare perusal of
the seizure memo (page No. 33 of the paper book) reveals that
the officer concerned had sufficient time to comply with the
provisions of Section 42 of the Act of 1985; however, the same
was not done. Not only this, even after receiving the information
and undertaking the entire proceedings during the period between
sunset and sunrise, no memorandum under Section 42 of the Act
of 1985 was forwarded to the superior officers. The officer
concerned, however, complied with the provisions of Section 50 of
the Act of 1985, which is evident from the notice served upon the
accused-applicant (page No. 40 of the paper book), wherein the
fact of receipt of the secret information has also been specifically
mentioned. Thus, even though the alleged search has been shown
to have been undertaken at 11:10 AM, the vehicle had already been
intercepted at 5:23 AM, and there has been total non-compliance
with the provisions of Section 42(2) of the Act of 1985, inasmuch
as no information was ever sent to the superior officers. In the
entire paper book, there is not a single memorandum or document
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prepared by the Seizure Officer or the SHO concerned indicating
that the information was forwarded to the superior officers in
compliance with Section 42 of the Act of 1985. Furthermore, the
present case cannot be said to be one of chance recovery, as the
secret information regarding the transportation of the contraband
had admittedly been received prior to the seizure being
undertaken. Thus, prima facie, there appears to be total non-
compliance with the provisions of Section 42 of the Act of 1985 in
the case at hand.
8. Coming to the second argument advanced by learned
counsel for the applicant with regard to the delay in the trial; it is
true that delay in the trial, by itself, cannot be a ground to enlarge
an accused-applicant on bail. The Hon’ble Apex Court, in the cases
of Union of India v. Vigin K. Varghese, 2025 SCC OnLine SC
2440, Union of India v. Namdeo Ashruba Nakade, 2025 SCC
OnLine SC 3049, State of Punjab v. Balraj Singh @ Billa,
2026 SCC OnLine SC 1058, and State of Punjab v.
Sukhwinder Singh @ Gora, 2026 SCC OnLine SC 671, has
categorically held that even in cases of delay, the satisfaction
mandatorily required under Section 37 of the Act of 1985 has to
be recorded. However, in the present case, the delay is not
attributable to the accused-applicant, who has remained behind
bars for almost two and a half years without the trial having even
commenced, which is evident from the reports submitted by the
learned Trial Court to the Deputy Registrar General of this Court,
as specified supra. Even otherwise, the accused-applicant has
been able to prima facie demonstrate that he is not guilty of the
offence, inasmuch as there appears to be non-compliance with the
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mandatory provisions of Section 42 of the Act of 1985.
Furthermore, the accused-applicant does not have any criminal
antecedents, and the learned Public Prosecutor has not been able
to point out any material to indicate that the accused-applicant is
likely to commit any offence while on bail. Thus, the twin
conditions envisaged under Section 37 of the Act of 1985 stand
prima facie satisfied in the facts of the present case.
9. Considering the overall facts and circumstances of the case,
particularly the prima facie non-compliance with the mandatory
provisions of Section 42 of the Act of 1985, coupled with the gross
delay in even commencing the trial, this Court deems it
appropriate to enlarge the accused-applicant on bail.
10. Consequently, the bail application under Section 483
B.N.S.S. is allowed. It is ordered that the accused-applicant
Arjun S/o Hariram Ji, arrested in connection with F.I.R.
No.24/2024 registered at Police Station Desuri, District Pali, shall
be released on bail, if not wanted in any other case, provided he
furnishes a personal bond of Rs.50,000/- and two sureties of
Rs.25,000/- each, to the satisfaction of learned Trial Court, for his
appearance before that Court on each & every date of hearing and
whenever called upon to do so till completion of the trial.
11. It is further, made clear that findings recorded/observations
made herein-above are for limited purposes of adjudication of bail
application and the same shall not prejudice the trial of the case in
any manner.
(SANDEEP SHAH),J
83/Devraj Pandey/658
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