[2025:RJ-JP:44420] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous 2nd Bail Application No. 1742/2025 Smt. Mamta Jangid W/o Chhaju Ram Jangid, Aged About 40 Years, R/o Village Tatija, Police Station Khetdi District- Neema Ka Thana, Presently Tenant At Ramu Kalwaniya Ka Plot Munna Wali Dhani, Tan Lalchandpura, Police Station Kardhani, Jaipur. (At Present Accused Confined In Central Jail, Jaipur) ----Petitioner Versus State Of Rajasthan, Through Public Prosecutor. ----Respondent For Petitioner(s) : Mr. Nirmal Kumar Sharma For Respondent(s) : Mr. N.S. Dhakar, PP with Mr. Tapesh Agarwal, PP Mr. Gaurav Gupta, Assistant GA HON'BLE MR. JUSTICE ANIL KUMAR UPMAN Order 04/11/2025 1. This second bail application under Section 483 BNSS has been filed on behalf of the petitioner, who has been arrested in connection with FIR No.872/2024 registered at Police Station Kardhani, District Jaipur West (Raj.) for offence punishable under Section 8/20 of NDPS Act. 2. The first bail application filed on behalf of the petitioner was dismissed as withdrawn by this court vide order dated 13.12.2024 while giving liberty to renew the prayer for bail after submission of result of investigation. Now, charge-sheet has been filed thus, this second bail application has been preferred. 3. Learned counsel for the petitioner submits that petitioner has falsely been implicated in this case. It is submitted that the entire [2025:RJ-JP:44420] (2 of 5) [CRLMB-1742/2025] trial stands vitiated as the seizure officer was not competent or authorized to make the seizure or arrest in this matter. It is pointed out that the said officer was neither posted as the SHO nor holding the charge of SHO in the absence of a regular incumbent. During her testimony, the seizure officer candidly admitted that there is no document on record to show or prove that, at the time of the alleged seizure, the regular SHO was not available and that she was holding charge in his absence. 4. Counsel further submits that the mandatory provisions of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) have not been complied with. Section 42 empowers a police officer to enter, search, seize, and arrest without warrant or authorization in any building, conveyance, or enclosed place between sunrise and sunset. However, if the officer has reason to believe that obtaining a search warrant would afford an opportunity for the concealment of evidence or facilitate the escape of an offender; such officer may carry out the search between sunset and sunrise after recording the grounds of such belief in writing. In such cases, the officer is required to forthwith send a copy of the recorded information or grounds to his immediate official superior. It is submitted that in the present case, the search was conducted between sunset and sunrise on the basis of prior information. Therefore, it was incumbent upon the concerned officer to comply strictly with the provisions of Section 42 of the NDPS Act. However, admittedly, no memo or record was prepared by the seizure officer detailing the reasons for conducting the search at night. Reliance is placed upon the [2025:RJ-JP:44420] (3 of 5) [CRLMB-1742/2025] judgment of the Hon’ble Supreme Court in State of Orissa v. Laxman Jena, (2009) 16 SCC 332. 5. Learned counsel further submits that the application for preparation of inventory was filed before the concerned Court on 12.09.2024, i.e., after a delay of 45 days from the date of alleged recovery of the contraband. On the same day, samples were drawn in the presence of the Magistrate; however, instead of depositing the samples in the FSL on the same day, the samples were deposited on 17.09.2024 i.e., after a delay of five days without any plausible explanation for such delay, despite the statutory requirement for immediate sampling and dispatch. It is further contended that the seizure officer was neither the SHO nor the Investigating Officer on the date of preparation of inventory, raising doubts as to the capacity in which the application for inventory was moved by her. Counsel further contends that the arrest of the petitioner is illegal, as it was made between sunset and sunrise without taking prior permission from the jurisdictional Magistrate. The law explicitly prohibits the arrest of a woman during night hours except in exceptional circumstances, and even then, only with prior judicial authorization. The seizure officer has admitted that, since recovery was made under the NDPS Act, she did not follow the provisions of Section 43(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (Corresponding to Section 46(4) of the erstwhile CrPC). It is further submitted that the alleged recovery of Ganja was made from a house which neither belongs to nor is tenanted by the petitioner. The seizure officer has admitted that no evidence was collected at the time of recovery to [2025:RJ-JP:44420] (4 of 5) [CRLMB-1742/2025] establish that the petitioner was in possession of the said premises. It is contended that there are no criminal antecedents against the petitioner and trial will take considerable time in its conclusion as till date, only 1 witness has been examined out of 24 cited prosecution witnesses. Counsel submits that petitioner is female and she is in custody since 29.07.2024. Further incarceration of the petitioner would not serve any fruitful purpose. 6. Learned Public Prosecutor opposes the submissions made by counsel for the petitioner. 7. I have considered the contentions. 8. Having regard to the totality of the facts and circumstances of the case; considering the arguments advanced by learned counsel for the petitioner and learned Public Prosecutor and as also considering the testimony of seizure officer PW.1 Karishma, SI, and the fact that the petitioner is a female; trial will take considerable time in its conclusion as only one witness out of 24 witnesses has been examined, she is in custody since 29.07.2024 and there are no criminal antecedents against petitioner but without commenting anything on the merits/demerits of the case, I deem it proper to allow the second bail application. 9. This second bail application is accordingly allowed and it is directed that accused-petitioner - Smt. Mamta Jangid W/o Chhaju Ram Jangid, shall be released on bail provided she furnishes a personal bond in the sum of Rs.2,00,000/- together with two sureties in the sum of Rs.1,00,000/- each to the satisfaction of the learned Trial Court with the stipulation that she [2025:RJ-JP:44420] (5 of 5) [CRLMB-1742/2025] shall appear before that Court and any court to which the matter is transferred, on all subsequent dates of hearing and as and when called upon to do so. 10. However, it is made clear that the petitioner shall not involve in similar offence(s) during currency of bail granted by this Court. The petitioner is further directed to mark her presence in the concerned police station in first week of every month, till trial is concluded. 11. Concerned SHO shall enter the attendance of the petitioner in the Roznamcha. In case the petitioner fails to mark her presence in the concerned police station, as directed above, the concerned SHO is directed to immediately report the matter to the concerned Court in this regard. 12. If breach of any of these conditions is reported or come to the notice of the Court, the same shall alone be a reason for the trial Court to cancel the bail granted to petitioner by this Court. 13. Office is directed to send a copy of this order to the concerned SHO for necessary compliance. 14. The observations made hereinabove are only for decision of the bail application and would not have any impact on the trial of the case in any manner. (ANIL KUMAR UPMAN),J GAUTAM JAIN /2