[2023:RJ-JP:24403]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous II Bail Application No. 7081/2023
Rajkamal S/o Omprakash, Aged About 28 Years, Resident Of
Kalana, Police Station Bhadra, Dist. Hanumangarh( Raj.)
(Present Petitioner Is In Sub Jail Chhabra)
----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
13/09/2023
The instant second application for bail under Section 439 Cr.P.C. has been filed on behalf of the petitioner who is in custody since 01.07.2020 in connection with FIR No.173/2020 registered at Police Station Atru, District Baran for offences under Sections 8/15 & 8/29 of the NDPS Act.
After completion of investigation, chargesheet has been filed before the learned court below and thus, the accused petitioner is facing trial in Sessions Case No.94/2020 before the court of learned Special Judge, NDPS Act Cases, Chhabra, Baran where the trial is at the stage of recording prosecution evidence.
Learned counsel for the petitioner submits that the petitioner has falsely been implicated in this case. He is in custody since 01.07.2020 and till date, he has suffered incarceration of nearly three years and three months. He submits that period of custody (Downloaded on 11/11/2023 at 07:59:47 PM) [2023:RJ-JP:24403] (2 of 5) [CRLMB-7081/2023] is always relevant consideration for grant of bail. He further draws attention of this Court to the fact that till date, only one witness has been examined so far out of 17 cited witnesses and thus, the trial will take long time in its conclusion. He submits that the petitioner has no criminal antecedents under the NDPS Act. Counsel for the petitioner also contends 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 placed reliance 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.
He also submits that in the present case, samples were drawn in violation of Standing Order No.1/89 issued by the NCB, New Delhi as the Seizure Officer was required to take separate sample from each bag. Counsel further submits that the procedure of sampling has to be done in accordance with the directions given by the Apex Court in the case of Gaunter Edwin Kircher vs State of Goa, Secretariat Panaji, Goa (AIR 1993 SC 1456) decided on 16.03.1993 in which it was clarified that sample has to be taken from each bag. As separate weight of all the bags were not known and sample from each bag was not drawn for testing, it cannot be said with utmost certainty that each packet was containing opium dodachura and that the quantity of recovered contraband was 183.3 Kgs. Learned counsel for the (Downloaded on 11/11/2023 at 07:59:47 PM) [2023:RJ-JP:24403] (3 of 5) [CRLMB-7081/2023] petitioners relied upon the order passed by Coordinate Bench of this Court in Netram v State of Rajasthan (2014 (1) Cr.L.R. (Raj.) 163. He has also place reliance upon the following judgments passed by Hon'ble Apex Court as well as of this Court in which period of incarceration has been considered relevant for grant of bail:-
1. Abdul Majeed Lone Vs. Union Territory of Jammu and Kashmir (Special Leave to Appeal (Crl.) No.3961/2022
2. Amit Singh Moni Vs. State of Himachal Pradesh : Crimial Appeal No.668/2020
3. Tapan Das vs. UOI (Special Leave to Appeal (Criminal) No.5617/2021
4. Ghanshyam Sharma vs. State of Rajasthan (Special Leave to Appeal (Criminal) No.5397/2019
5. Nadeem vs State of UP (Special Leave to Appeal (Criminal) No.1524/2022
6. Suresh Kumar vs State of Rajasthan (S.B. Criminal Misc. 3rd Bail Application No.16118/2022, decided on 04.01.2023)
7. Govind vs State of Rajasthan (S.B. Criminal Misc. 2nd Bail Application No.426/2023, decided on 17.02.2023) He submits that in all these cases, bail was granted only on the ground of period of incarceration. He also relied upon the order passed by Hon'ble Apex Court in the case of Raju Ram vs State of Bihar : (2023) 1 Supreme 670 wherein it has been held that on the basis of period of incarceration, bail can be granted by relaxing the provision of Section 37 of the NDPS Act. (Downloaded on 11/11/2023 at 07:59:47 PM) [2023:RJ-JP:24403] (4 of 5) [CRLMB-7081/2023] Per contra, learned Public Prosecutor opposed the bail application and submits that contraband opium dodachura weighing 183.3 Kgs. was recovered from the vehicle, being driven by the petitioner, which is commercial quantity and considering the rigour of Section 37 of the NDPS Act, bail should not be granted.
I have heard and considered the submissions advanced by counsel for the petitioner as well as learned Public Prosecutor and perused the material available on record.
As per record, the petitioner is in custody since 01.07.2020 and thus, he has suffered incarceration of nearly 3 years and 3 months till date. It also appears from the record that only one witness has been examined so far and the trial will take long time in its conclusion and thus, the fundamental right of the petitioner of speedy trial is also being violated. The Hon'ble Apex Court has granted bail to different accused persons by considering the period of incarceration of about two years or more.
Considering the overall facts and circumstances of the case especially the fact that the petitioner is in custody since 01.07.2020, only one witness has been examined out of total 17 cited witnesses, in similar fact situation, benefit of bail has been extended to the persons by the Hon'ble Apex Court as well as by this Court who have suffered incarceration of 2 years or more so also as per the FIR, it appears that the samples were not drawn as per the directions given by Hon'ble Apex Court in the case of (Downloaded on 11/11/2023 at 07:59:47 PM) [2023:RJ-JP:24403] (5 of 5) [CRLMB-7081/2023] Gaunter Edwin Kircher vs State of Goa, Secretariat Panaji, Goa (supra) and were drawn in violation of 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, without commenting anything on the merits/demerits of the case, I deem it just and proper to accept the instant bail application.
Thus, the bail application is allowed and it is directed that accused petitioner Rajkamal S/o Shri Omprakash, arrested in connection with FIR No.173/2020 PS Atru, District Baran 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.
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 07:59:47 PM) Powered by TCPDF (www.tcpdf.org)