Rajasthan High Court
Banna Son Of Bhura vs State Of Rajasthan (2024:Rj-Jp:18176) on 4 April, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JP:18176]
`HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous 2nd Bail Application No. 13070/2022
Banna Son Of Bhura, Aged About 63 Years, Resident Of 156
Dhani Kudiyawali Tan Simarla Jagir, Tehsil Srimadhopur, Distt.
Sikar ( At Present Accused Is Confined In Sub Jail Neem Ka
Thana)
----Petitioner
Versus
State Of Rajasthan, Through P.p.
----Respondent
For Petitioner(s) : Mr. Manish Gupta
Ms. Sweta Soni
For Respondent(s) : Mr. Imran Khan, PP
HON'BLE MR. JUSTICE FARJAND ALI
(THROUGH VIDEO CONFERENCING)
Order
04/04/2024
1. The jurisdiction of this court has been invoked by way of filing the second application under Section 439 CrPC at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:
S.No. Particulars of the Case
1. FIR Number 33/2022
2. Concerned Police Station Ringas
3. District Sikar
4. Offences alleged in the FIR Section 8/15 of the NDPS
Act
5. Offences added, if any -
6. Date of passing of impugned 25.01.2022
order
2. The first bail application being S.B. Criminal Misc. Bail Application No.1832/2022 came to be dismissed as withdrawn by (Downloaded on 03/05/2024 at 09:08:57 PM) [2024:RJ-JP:18176] (2 of 7) [CRLMB-13070/2022] this Court vide order dated 05.07.2022 and a liberty was afforded to the petitioner to renew the prayer for bail after the statement of Seizing Officer is recorded. Now, the statement of Seizing Officer has been recorded. Hence, the instant bail application.
3. Briefly stated the facts of the case are that on 16.01.2022, Sub-Inspector Madan Lal recovered poppy husk weighing 142 Kg 700 gms from the possession of the petitioner whereafter the accused was taken into custody. The Seizing Officer took samples at the spot and marked them as 'S' 'S-1' and 'S-2' from the recovered contraband and the same were sent to the FSL for chemical examination. After usual investigation, a charge sheet under Section 8/15 of the NDPS Act has been filed.
4. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. There are no factors at play in the case at hand that may work against grant of bail to the accused- petitioner and he has been made an accused based on conjectures and surmises. He further submits that the accused was taken into custody on 16.01.2022 and since then he is behind the bars. Now, more than two years have lapsed but the trial is not going to be culminated and still it seems that a further long time shall be taken in conclusion of the same, thus, he may be enlarged on bail.
5. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail.
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6. Have heard and considered the submissions made by both the parties and have perused the challan papers and the other material available on record.
7. Perusal of the material available on record revealing that on 16.01.2022, Sub Inspector Madan Lal recovered poppy husk weighing 142.700 Kg the possession of the petitioner whereafter samples were taken by him at the spot and marked as 'S', 'S-1' & 'S-2' and the samples were sent to the FSL for detection of morphine and its derivatives.
8. It is an admitted situation that the samples which were taken by the Seizing Officer from the spot on 16.01.2022 were sent to the FSL for chemical examination, which were not taken in the presence of the Magistrate. Apparently, the guidelines issued by the Government vide Standings Order Nos.1/1988 & 1/1989 as well as the mandate of law contained under Section 52-A of the NDPS Act have not been complied with. Admittedly, no samples were taken in the presence of Magistrate whereas the samples taken at the spot were sent to the FSL.
9. In this view of the matter it can be said that the samples sent to the FSL and the report of the FSL in this regard is nothing but is a waste paper as propounded in a judgment titled as Mohammed Khalid and another Vs. The State of Telangana passed by Hon'ble the Supreme Court in Criminal Appeal No(S). 1610 Of 2023 dated 01.03.2024, it was held that since no proceedings were undertaken for preparing of inventory and drawings of samples as per Section 52-A of NDPS Act, thus, the FSL was considered to be waste and was not considered worthy of (Downloaded on 03/05/2024 at 09:08:57 PM) [2024:RJ-JP:18176] (4 of 7) [CRLMB-13070/2022] being read in evidence on the basis of this inter alia other aspects, Hon'ble the Apex Court acquitted the appellants of all charges. The relevant paragraph of the above judgment is reproduced as under:-
"22. Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer PW-5 for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. In this view of the matter, the FSL report(Exhibit P11) is nothing but a waste paper and cannot be read in evidence."
10. In this instant matter too, the alleged contraband was seized on 16.01.2022 and Section 52-A of NDPS Act has not been complied with after the seizure of the contraband and no samples drawn in the presence of magistrate were sent for scientific investigation, thus, the requisite compliance of Section 52-A of NDPS Act has not been made.
11. Moving on to the impediments contained under Section 37 of the NDPS Act, it is considered relevant to refer to the recent ruling passed by Hon'ble the Supreme Court in Mohd Muslim @ Hussain V. State (NCT OF DELHI) Vs. State (NCT of Delhi) passed by Hon'ble the Supreme Court in Special Leave Petition (Crl.) No.915 of 2023 vide order dated 28.03.2023, wherein while discussing the parameters of Section 37 of the NDPS Act, it was held that the provision cannot be construed in a manner that would render the grant of bail impossible. The accused-appellant in the aforementioned case was directed to be enlarged on bail looking to the long period of incarceration. The paragraphs of Mohd. Muslim @ Hussain (supra) relevant to the present matter are reproduced below:
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[2024:RJ-JP:18176] (5 of 7) [CRLMB-13070/2022] "18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail. What is meant by "not guilty" when all the evidence is not before the court? It can only be a prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 1 Special Leave Petition (CRL.) NO(S). 915 of 2023, decided on 28.03.2023. 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions.
In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts:
likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws - be balanced against the public interest.
19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well.
Therefore, the only manner in which such special conditions as (Downloaded on 03/05/2024 at 09:08:57 PM) [2024:RJ-JP:18176] (6 of 7) [CRLMB-13070/2022] enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act."
(Emphasis Supplied)
12. In Rabi Prakash Vs. State of Odisha passed in Special leave to Appeal (Crl.) No.(s) 4169/2023, Hon'ble the Apex Court has again passed an order dated 13th July, 2023 dealing this issue and has held that the provisional liberty(bail) overrides the prescribed impediment in the statute under Section 37 of the NDPS Act as liberty directly hits one of the most precious fundamental rights envisaged in the Constitution, that is, the right to life and personal liberty contained in Article 21.
13. At the stage of hearing of a bail plea pending trial, although this Court is not supposed to make any definite opinion or observation with regard to the discrepancy and legal defect appearing in the case of prosecution as the same may put a serious dent on the State's case yet at the same time, this Court can not shut its eye towards the non-compliance of the mandatory provision, more than two years of incarceration pending trial, failure of compliance with the procedure of sampling and seizure and the serious issue of competence of seizure officer. In the case of Mohd. Muslim @ Hussain (Supra) it has been propounded that at the stage of hearing a bail application under Section 439 Cr.P.C., although it is not possible to make a definite opinion that they are not guilty of the alleged (Downloaded on 03/05/2024 at 09:08:57 PM) [2024:RJ-JP:18176] (7 of 7) [CRLMB-13070/2022] crime but for the limited purpose for the justifiable disposal of the bail applications, a tentative opinion can be formed that the material brought on record is not sufficient enough to attract the embargo contained under Section 37 of the NDPS Act. Though specific arguments have not been conveyed but looking to the fact that the accused is in custody, this court feels that the accused are not supposed to establish a case in support of his innocence rather his detention is required to be justified at the instance of the prosecution, therefore, this court went deep into the facts of the case and the manner in which the entire proceedings have been undertaken. If other surrounding factors align in consonance with the statutory stipulations, the personal liberty of an individual can not encroached upon by keeping him behind the bars for an indefinite period of time pending trial. In view of the above, it is deemed suitable to grant the benefit of bail to the petitioner.
14. Accordingly, the instant second bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner shall be enlarged on bail provided he furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance before the court concerned on all the dates of hearing as and when called upon to do so.
(FARJAND ALI),J Mamta/40 (Downloaded on 03/05/2024 at 09:08:57 PM) Powered by TCPDF (www.tcpdf.org)