[2023:RJ-JP:24336]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Bail Application No. 10864/2023
Kanhiram @ Kanhilal, Aged About 27 Years, R/o Village
Rampuriya P.s. Bhalta Tehsil Aklera District Jhalawar. (At Present
Confined In Central Jail Kota) (Raj.)
----Petitioner
Versus
State of Rajasthan, Through Special PP
----Respondent
For Petitioner(s) : Mr. Rohit Khandelwal
For Respondent(s) : Mr. Tej Prakash Sharma, Special
Public Prosecutor
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
Order
06/09/2023
1. The instant bail application has been filed under Section 439 Cr.P.C. on behalf of the accused-petitioner Kanhiram @ Kanhilal who has been in custody since 03.10.2022 in connection with FIR No.08/2022 registered at Police Station CBN Kota District Kota for offences under Sections 8/21 and 8/29 of the NDPS Act. After completion of investigation, charge-sheet has been filed in the matter before the learned court below.
2. It is contended by learned counsel for the petitioner that the accused petitioner has falsely been implicated in this case. He contends that the petitioner has nothing to do with the alleged recovery of contraband heroine. As per the prosecution case, contraband heroine weighing 75 grams and 270 grams were (Downloaded on 11/11/2023 at 07:50:15 PM) [2023:RJ-JP:24336] (2 of 4) [CRLMB-10864/2023] recovered from Kanhiram, petitioner herein and Mohan Lal respectively. The co-accused Mangilal, who was arrested along with other Mohanlal and petitioner, has been granted bail by a Co-ordinate Bench of this Court. He submits that the work of drawing sample was not done in accordance with the provisions of sub-section 2 of Section 52A of the NDPS Act. He argues that the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. However, there is total non-compliance of this provision of law. He further submits that looking to the quantity recovered from individual possession of the petitioner, it is clear that the alleged recovered contraband is intermediate quantity and as such, the provisions of Section 37 of the NDPS Act do not apply to the present case. Reliance has been placed on the following judgments:- (1) Union of India vs Mohanlal & Anr : (2016) 3 SCC 3749 and (2) Mangilal vs State of Madhya Pradesh: 2023 SCC online SC 862.
3. He submits that after investigation, police has filed chargesheet in the matter and trial will take considerable time in its conclusion. The petitioner has no criminal antecedents. He thus, prays that the instant application for bail may be accepted and the petitioner may be released on bail.
4. Per contra, learned Special Public Prosecutor vehemently and fervently opposes the bail application. He submits that the total recovered contraband heroine affected from the accused persons on 03.10.2022 by the police team, comes under the definition of (Downloaded on 11/11/2023 at 07:50:15 PM) [2023:RJ-JP:24336] (3 of 4) [CRLMB-10864/2023] commercial quantity and thus, considering the rigour of Section 37 of the NDPS Act, bail should not be granted.
5. I have heard and considered the submissions advanced by counsel for the petitioner as well as learned Special Public Prosecutor and perusal the material available on record.
6. The process of drawing samples has not been done in the presence and under the supervision of the Magistrate which is not in conformity with the law laid down by Hon'ble Apex Court in the case of Union of India vs Mohanlal (supra). Further, contraband heroine weighing 270 grams was recovered from the possession of the accused Mohanlal whereas 75 grams heroine was recovered from the accused petitioner which is intermediate quantity.
7. Considering the overall facts and circumstances of the case especially the fact that after completion of investigation, chargesheet has been filed, co-accused Mangilal have been granted bail by coordinate Bench of this Court, absence of criminal antecedents, as per the FIR, it appears that the mandatory provisions of Section 52A of the NPDS Act and the guidelines laid down by the Hon'ble Supreme Court in the case of Union of India vs Mohanlal reported in (2016) 3 SCC 379 have not been followed in the present case, but without making any comments on the merits/demerits of the case, I deem it just and proper to accept the instant bail application.
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8. Thus, the bail application is allowed and it is directed that accused petitioner Kanhiram @ Kanhilal arrested in connection with FIR No.08/2022 PS CBN Kota, District Kota shall be released on bail provided he furnishes a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand only) together with two sureties in the sum of Rs.25,000/- (Rupees Twenty Five Thousand only) each to the satisfaction of the learned trial court with the stipulation that he 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.
9. It is made clear that the petitioner shall not involve in any other similar offence during currency of the bail. In case, breach of this condition is reported or come to the notice of the Court, the trial court can cancel the bail granted to him by this Court.
(ANIL KUMAR UPMAN),J Sudhir Asopa/16 (Downloaded on 11/11/2023 at 07:50:16 PM) Powered by TCPDF (www.tcpdf.org)