Rajasthan High Court – Jodhpur
Kailash vs State Of Rajasthan on 15 July, 2026
[2026:RJ-JP:31506]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 14805/2025
CNR: RJHC011083822025
URN: CRLMB / 30797U / 2025
Kailash S/o Mangilal, Aged About 21 Years, Resident Of Rajala
Nada Peelwa Police Station Lohawat District Jodhpur At Present
Plot No 10 Near Police Station 8 Meel Mandore District Jodhpur
Rajasthan (Lodged In Sub Jail Sahapura)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Bhagirath Ray Bishnoi
For Respondent(s) : Mr. Surendra Bishnoi,PP
HON'BLE MR. JUSTICE SANDEEP SHAH
Order
15/07/2026
1. The applicant has filed the present bail application under
Section 483 of B.N.S.S. being aggrieved against the order dated
10.11.2025 passed by the learned Special Judge, NDPS Cases
(Additional Sessions Judge), Shahpura, District Bhilwara in
Criminal Miscellaneous Bail Case No.191/2025, whereby the bail
application filed by the accused-applicant under Section 483 of
B.N.S.S. was rejected. The accused-applicant is behind the bars,
pursuant to the F.I.R. No.138/2024 registered at Police Station
Hanuman Nagar, District Bhilwara, for the offences punishable
under Sections 8/15 of NDPS Act.
2. Briefly stated, the prosecution case is that while the police
officials were conducting a routine nakabandi, a white-coloured
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pickup vehicle bearing Registration No. RJ-14-GJ-8522 was seen
approaching at a high speed. The vehicle was intercepted,
whereupon the person seated next to the driver alighted from the
vehicle and fled from the spot. The driver was apprehended, who
disclosed his name as Kailash (the present applicant). He further
disclosed that the person who had escaped was Dinesh. The
applicant also informed the police officials that he was carrying a
narcotic substance in the vehicle.
3. Upon receiving such information, the police officials made
efforts to secure the presence of independent witnesses, however,
despite their best efforts, no independent person agreed to join
the proceedings. Consequently, the police officials themselves
became witnesses to the proceedings. Thereafter, a notice under
Section 50 of the Narcotic Drugs and Psychotropic Substances Act,
1985 (for short, “the NDPS Act“) was served upon the applicant
informing their rights. Thereafter, the search of the vehicle was
conducted, during which 304 kilograms of poppy husk was
recovered. Consequently, the FIR was registered and the applicant
was arrested.
4. After completion of investigation, the charge-sheet was filed,
charges were framed and the trial commenced. It has been
informed that, up to 07.01.2026, four prosecution witnesses,
including the Investigating Officer and the Seizure Officer, have
already been examined. Learned counsel for the applicant,
however, is not in a position to apprise this Court about the
present stage of the trial.
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5. Learned counsel for the applicant submits that there has
been non-compliance with Section 42 of the NDPS Act, inasmuch
as prior to conducting the search, the applicant had allegedly
informed the Seizure Officer that he was carrying contraband, yet
the mandatory procedure prescribed under Section 42 was not
followed. Learned counsel further submits that the notice under
Section 50 of the NDPS Act is defective and incomplete, as the
applicant was not informed that if the search were to be
conducted before a Gazetted Officer or Magistrate and no
reasonable ground for search was found, he would be discharged.
Learned counsel further submits that the applicant has remained
in judicial custody for nearly two years and one month. Learned
counsel also contends that there was an inordinate delay in
forwarding the samples to the Forensic Science Laboratory (FSL),
thereby violating the Rules of 2022, inasmuch as the samples
were drawn on 29.05.2024 but were sent to the FSL only on
14.08.2024. On these grounds, he prayed that the applicant be
enlarged on bail.
6. Per contra, learned Public Prosecutor has opposed the bail
application and submits that a commercial quantity of contraband
has been recovered from the conscious possession of the applicant
and, therefore, the rigours of Section 37 of the NDPS Act are fully
attracted. Learned Public Prosecutor further submits that the
present case is one of chance recovery, and therefore the
provisions of Sections 41 and 42 of the NDPS Act have no
application. According to the learned Public Prosecutor, Section 42
comes into operation only where the empowered officer acts upon
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prior information received from another person or on the basis of
his personal knowledge. In the present case, no such prior
information was available. The disclosure made by the applicant
immediately before the search that he was carrying contraband
cannot be equated with prior information or personal knowledge
contemplated under Section 42 of the Act. Thus, the only
statutory requirement at that stage was compliance with Section
50 of the NDPS Act, which has been duly complied with. Having
regard to the nature and gravity of the allegations and the
statutory embargo contained under Section 37 of the NDPS Act,
learned Public Prosecutor submits that the applicant does not
deserve to be enlarged on bail.
7. I have considered the submissions advanced by learned
counsel for the parties and have carefully gone through the
material available on record. 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 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(Uploaded on 17/07/2026 at 02:25:36 PM)
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[2026:RJ-JP:31506] (5 of 11) [CRLMB-14805/2025]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
Act or any rule or order made thereunder, such power
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(Uploaded on 17/07/2026 at 02:25:36 PM)
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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.”
8. A bare perusal of Section 42 of the NDPS Act reveals that
where an empowered officer receives prior information from any
person or acts upon his personal knowledge regarding the
commission of an offence under the Act, such information is
required to be reduced into writing before proceeding with the
search, seizure or arrest. In the present case, however, the facts
stand on an entirely different footing. The recovery was effected
during a routine nakabandi and is, therefore, a case of chance
recovery. It was only immediately before the search of the vehicle
that the applicant himself disclosed that he was carrying
contraband. Such a statement made by the accused cannot be
construed either as prior information received from another
person or as personal knowledge of the empowered officer within
the meaning of Section 42 of the Act. At best, it may amount to
an inculpatory statement made by the accused, but it cannot
attract the procedural requirements contemplated under Section
42. Consequently, this Court is of the considered view that prima
facie Section 42 has no application to the facts of the present case
and the search is governed by the provisions of Section 43 of the
NDPS Act.
9. As regards the alleged non-compliance of Section 50 of the
NDPS Act, it is not in dispute that a notice under Section 50 was
duly served upon the applicant informing him of his valuable right
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to be searched before a Gazetted Officer or a Magistrate as
contemplated under sub-section (1) of Section 50 of the NDPS
Act. The argument advanced on behalf of the applicant is that he
was not informed that if the Gazetted Officer or Magistrate found
no reasonable ground for search, he would be discharged. This
submission cannot be accepted. The statutory requirement under
Section 50 is confined to informing the accused of his right to be
searched before a Gazetted Officer or a Magistrate. Neither sub-
section (1) nor sub-section (3) of Section 50 mandates that the
accused must additionally be informed that he may be discharged
if no reasonable ground for search is found. Rather, sub-section
(3) essentially deals with the duty assigned to the Magistrate or
the Gazetted Officer concerned to discharge the person in case he
sees no reason or ground for a search. In this regard, the
Constitution Bench of the Hon’ble Apex Court, in the case of
Vijaysinh Chandubha Jadeja v. State of Gujarat, reported in
(2011) 1 SCC 609, has held as under:
“19. Sub-section (1) of Section 50 provides that when the
empowered officer is about to search any suspected person,
he shall, if the person to be searched so requires, take him
to the nearest gazetted officer or the Magistrate for the
purpose. Under sub-section (2), it is laid down that if such
request is made by the suspected person, the officer who is
to take the search, may detain the suspect until he can be
brought before such gazetted officer or the Magistrate. It is
manifest that if the suspect expresses the desire to be
taken to the gazetted officer or the Magistrate, the
empowered officer is restrained from effecting the search of
the person concerned. He can only detain the suspect for
being produced before the gazetted officer or the
Magistrate, as the case may be. Sub-section (3) lays down
that when the person to be searched is brought before such
gazetted officer or the Magistrate and such gazetted officer(Uploaded on 17/07/2026 at 02:25:36 PM)
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[2026:RJ-JP:31506] (8 of 11) [CRLMB-14805/2025]or the Magistrate finds that there are no reasonable
grounds for search, he shall forthwith discharge the person
to be searched, otherwise he shall direct the search to be
made.
20. The mandate of Section 50 is precise and clear viz. if
the person intended to be searched expresses to the
authorised officer his desire to be taken to the nearest
gazetted officer or the Magistrate, he cannot be searched till
the gazetted officer or the Magistrate, as the case may be,
directs the authorised officer to do so.
29. In view of the foregoing discussion, we are of the firm
opinion that the object with which the right under Section
50(1) of the NDPS Act, by way of a safeguard, has been
conferred on the suspect viz. to check the misuse of power,
to avoid harm to innocent persons and to minimise the
allegations of planting or foisting of false cases by the law
enforcement agencies, it would be imperative on the part of
the empowered officer to apprise the person intended to be
searched of his right to be searched before a gazetted
officer or a Magistrate. We have no hesitation in holding
that insofar as the obligation of the authorised officer under
sub-section (1) of Section 50 of the NDPS Act is concerned,
it is mandatory and requires strict compliance. Failure to
comply with the provision would render the recovery of the
illicit article suspect and vitiate the conviction if the same is
recorded only on the basis of the recovery of the illicit
article from the person of the accused during such search.
Thereafter, the suspect may or may not choose to exercisethe right provided to him under the said provision.”
10. A perusal of the mandate of the Hon’ble Apex Court leaves
no doubt that the requirement under Section 50 is limited to
informing the accused of his right to be searched by a Gazetted
Officer or a Magistrate. There is no additional requirement to
inform him that, should he choose to be searched by such
Gazetted Officer or Magistrate, he may be discharged if the officer
concerned sees no reasonable ground for the search. Thus, the
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contention regarding non-compliance of Section 50 is devoid of
merit.
11. As regards the submission based on prolonged incarceration,
the Hon’ble Supreme Court in 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 mere delay in
conclusion of the trial cannot by itself constitute a ground for
grant of bail in cases involving commercial quantity of contraband.
Before granting bail, the Court must record satisfaction regarding
the twin conditions prescribed under Section 37 of the NDPS Act.
Further, since the recovery has been effected from the conscious
possession of the applicant, the statutory presumptions contained
under Sections 35 and 54 of the NDPS Act are attracted. At this
stage, the applicant has not been able to rebut the said
presumptions. It is also pertinent to note that up till 07.01.2026,
four prosecution witnesses, including the Investigating Officer and
the Seizure Officer, have already been examined. Thus, it cannot
be said that the trial is not progressing or that there has been any
unreasonable delay attributable to the prosecution.
11. As far as the contention regarding non-compliance with the
Rules of 2022 relating to collection, preservation and dispatch of
samples to the FSL is concerned, this Court is conscious of the law
laid down by the Hon’ble Supreme Court in Bharat Aambale v.
State of Chhattisgarh, (2025) 8 SCC 452, wherein it has been
held that the provisions relating to Section 52-A of NDPS Act,
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1985 and the Rules governing collection and dispatch of samples
are directory in nature and not mandatory. Thus the ground of
procedural irregularity is not made out. Even otherwise whether
there was any violation of provisions of Section 52-A of the NDPS
Act or Rules of 2022 and its consequences can be best considered
at the stage of trial.
12. A perusal of the material available on record reveals that
304 kilograms of poppy husk has been recovered from the
conscious possession of the applicant, which is admittedly a
commercial quantity.
13. Consequently, the statutory restrictions contained under
Section 37 of the NDPS Act are attracted with full force. At this
stage, this Court is unable to record its satisfaction that there are
reasonable grounds for believing that the applicant is not guilty of
the offence alleged or that he is not likely to commit any offence
while on bail.
14. Consequently, having regard to the overall facts and
circumstances of the case, particularly the recovery of commercial
quantity of contraband from the conscious possession of the
applicant and the statutory embargo contained under Section 37
of the NDPS Act, this Court is not inclined to enlarge the applicant
on bail.
15. Accordingly, the present bail application is dismissed.
However, considering that the applicant has remained in judicial
custody for a considerable period and the trial is in progress, the
learned Trial Court is expected to make all possible endeavours to
expedite the proceedings and conclude the trial as expeditiously
as possible, strictly in accordance with law.
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16. It is further, made clear that the 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
2/Mohit Kumar/626
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