[2023:RJ-JP:23244]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Bail Application No. 8027/2023
1. Rahis Khan S/o Ishaq Khan, Aged About 50 Years,
Residence Of Kilona, Police Station Nalkheda, District
Aagr (M.p.) (Petitioner In Sub Jail Bhawanimandi)
2. Farman Khan S/o Rakhman Khan, Aged About 40 Years,
Residence Of Kilona, Police Station Nalkheda, District
Aagr (M.p.) (Petitioner In Sub Jail Bhawanimandi)
----Petitioners
Versus
State Of Rajasthan, Through P.P.
----Respondent
Connected With S.B. Criminal Miscellaneous Bail Application No. 8028/2023 Babu Khan S/o Bahdur Khan, Aged About 60 Years, Residence Of Kilona, Police Station Nalkheda, District Aagr (M.p.) (Petitioner In Sub Jail Bhawanimandi)
----Petitioner Versus State Of Rajasthan, Through PP.
----Respondent
For Petitioner(s) : Mr. Ali Mohd Khan
For Respondent(s) : Mr. Chandragupt Chopra, PP
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
Order
14/09/2023
1. These bail applications have been filed under Section 439 Cr.P.C. on behalf of the accused-petitioners who have been in custody since 26.05.2022 in connection with FIR No.247/2022 registered at Police Station Bhawanimandi, District Jhalawar for offences under Sections 8/20 and 8/29 of the NDPS Act. After (Downloaded on 11/11/2023 at 07:54:10 PM) [2023:RJ-JP:23244] (2 of 4) [CRLMB-8027/2023] investigation, the police has filed chargesheet in this matter before the learned court below.
2. It is contended by learned counsel for the petitioners that the accused petitioners have falsely been implicated in this case. He contends that the petitioners have nothing to do with the alleged recovery of contraband Ganja. Counsel submits that as per prosecution case, contraband ganja weighing 90 Kgs. was recovered from the car No. MP 09 CN 5149 and the petitioners were there in the car. It is contended by learned counsel for the petitioners that the work of drawing samples 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 argued that inventory report of this case has been prepared after an inordinate delay for which, no explanation has been given by the investigating agency. He also contends that the samples drawn from the alleged recovered were deposited in the FSL on 30.05.2022 for analysis purpose after 72 hours of the sampling, which is in violation of the mandatory provisions provided under the NDPS Act. He places reliance upon the judgments passed in the cases of (1) Union of India vs Mohanlal & Anr : (2016) 3 SCC 3749 and (2) Mangilal vs State of Madhya Pradesh: 2023 SCC online SC 862.
4. He submits that after investigation, police has filed chargesheet in the matter and trial will take considerable time in (Downloaded on 11/11/2023 at 07:54:10 PM) [2023:RJ-JP:23244] (3 of 4) [CRLMB-8027/2023] its conclusion. The petitioners have no similar criminal antecedents. He thus, prays that the instant applications for bail may be accepted and the petitioners may be released on bail.
5. Per contra, learned Public Prosecutor vehemently and fervently opposes the bail application. He submits that contraband ganja weighing 90 Kgs. has been recovered from the car of the petitioners. He contends that looking to the quantity of the recovered contraband bail should not be granted.
6. I have heard and considered the submissions advanced by counsel for the petitioners as well as learned Public Prosecutor and perusal the material available on record.
7. The process of drawing samples has not been done in the presence and under the supervision of the Magistrate which is in violation of Section 52A of the NDPS Act. Further, apart from inordinate delay in preparing the inventory, the samples drawn from the alleged recovered were deposited in the FSL for analysis purpose on 30.05.2022 after 72 hours of the sampling, which is in violation of the mandatory provisions provided under the NDPS Act. The petitioners are in custody since 26.06.2022 and trial will take long time in its conclusion.
8. Thus, considering the overall facts and circumstances of the case especially the fact that after completion of trial, chargesheet has been filed, the period of custody of the petitioners, absence of criminal antecedents of the petitioners under the NDPS Act, so also the fact that 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 (Downloaded on 11/11/2023 at 07:54:10 PM) [2023:RJ-JP:23244] (4 of 4) [CRLMB-8027/2023] without making any comments on the merits/demerits of the case, I deem it just and proper to accept the instant bail applications
9. Thus, the bail applications are allowed and it is directed that accused petitioners (1) Rahis Khan S/o Shri Ishaq Khan, (2) Farman Khan S/o Shri Rakhman Khan and (3) Babu Khan S/o Shri Bahdur Khan arrested in connection with FIR No.247/2022 PS Bhawanimandi, shall be released on bail provided each of them 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 they 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. It is made clear that the petitioners 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 07:54:10 PM) Powered by TCPDF (www.tcpdf.org)