Rajasthan High Court
Ganpat Ram S/O Oghad Ram vs Narcotic Control Bureau on 5 April, 2024
Author: Anil Kumar Upman
Bench: Anil Kumar Upman
[2024:RJ-JP:15977]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous II Bail Application No. 1381/2024
Ganpat Ram S/o Oghad Ram, Aged About 38 Years, R/o Village
Nimbol, Tehsil And Police Station Jaitaran, District Pali (Raj.)
(Presently Confined In Sub Jail Beawar, District Ajmer).
----Petitioner
Versus
Narcotic Control Bureau, Through Special PP
----Respondent
For Petitioner(s) : Mr. Pradeep Malik
Mr. Anirudh Singh
For Respondent(s) : Mr. Tej Prakash Sharma, Special PP
for NCB
Mr. Sanjeev Mahala, PP
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
ORDER
DATE OF PRONOUNCEMENT :- 05/04/2024
1. This is a second bail application under Section 439 Cr.P.C. filed on behalf of the petitioner who has been in custody in connection with FIR No.VIII(IO)/17/NCB/JZU/2022 registered on 16.07.2022 at NCB, Jodhpur for offences punishable under Sections 8/18, 8/25 and 8/29 of the NDPS Act.
2. Learned counsel for the petitioner submits that the previous bail application (No.6175/2023) filed on behalf of the petitioner was dismissed as withdrawn by this Court vide order dated 19.07.2023 with liberty to renew the prayer for bail after recording statement of the seizure officer. The testimony of seizure officer has been recorded at trial and after recording his evidence, the petitioner has filed this bail application. (Downloaded on 09/04/2024 at 08:41:43 PM) [2024:RJ-JP:15977] (2 of 5) [CRLMB-1381/2024]
3. Learned counsel submits that the accused petitioner has falsely been implicated in this case. He 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. In support of this contention, learned counsel places reliance upon the judgments passed in the cases of (1) Union of India vs Mohanlal & Anr :
(2016) 3 SCC 3749, (2) Mangilal vs State of Madhya Pradesh: 2023 SCC online SC 862 and (3) Simarnjit Singh Vs State of Punjab arising out of S.L.P. (Cr.l.) No. 1958 of 2023. Learned counsel contends that there is variation in the weight of the samples which were drawn at time of preparation of inventory report and when they were receiving in the FSL. The petitioner is in custody since 16.07.2022 and trial will take long time. He has placed 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. Raju Ram vs State of Bihar : (2023) 1 Supreme 670
2. Abdul Majeed Lone Vs. Union Territory of Jammu and Kashmir (Special Leave to Appeal (Crl.) No.3961/2022
3. Amit Singh Moni Vs. State of Himachal Pradesh : Crimial Appeal No.668/2020
4. Tapan Das vs. UOI (Special Leave to Appeal (Criminal) No.5617/2021 (Downloaded on 09/04/2024 at 08:41:43 PM) [2024:RJ-JP:15977] (3 of 5) [CRLMB-1381/2024]
5. Ghanshyam Sharma vs. State of Rajasthan (Special Leave to Appeal (Criminal) No.5397/2019
6. Nadeem vs State of UP (Special Leave to Appeal (Criminal) No.1524/2022
7. Suresh Kumar vs State of Rajasthan (S.B. Criminal Misc. 3rd Bail Application No.16118/2022, decided on 04.01.2023)
8. Govind vs State of Rajasthan (S.B. Criminal Misc. 2nd Bail Application No.426/2023, decided on 17.02.2023)
4. Learned counsel submits that in the case of Raju Ram (supra), 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. The petitioner does not have any criminal antecedents. He thus, prays that the instant bail application may be accepted.
5. Per contra, learned Special Public Prosecutor for NCB vehemently opposes the bail application on the ground that a huge quantity of contraband opium has been recovered from the petitioner which comes within the definition of commercial quantity. Learned Special Public Prosecutor contends that the argument of the petitioner's counsel that there is non-compliance of Section 52A of the NDPS Act is not correct as samples were drawn in the presence of the magistrate and thereafter, they were sent to FSL. Besides this, he submits that initially, contraband opium weighing 6.625 Kgs. was recovered from the possession of the petitioner and during investigation, an additional contraband opium weighing 1.55 Kgs. was also recovered from the house of the petitioner. He thus submits that considering the embargo (Downloaded on 09/04/2024 at 08:41:43 PM) [2024:RJ-JP:15977] (4 of 5) [CRLMB-1381/2024] contained in Section 37 of the NDPS Act, bail should not be granted.
6. I have considered the arguments advanced by learned counsel for the petitioner as well as learned Special Public Prosecutor and perused the material available on record. 7 As per the record, the samples were drawn in presence of the magistrate and thereafter, same were sent to FSL. So far as the argument of the counsel for the petitioner regarding period of incarceration of the petitioner is concerned, this Court is of the considered opinion that period of custody cannot be a sole ground to release the petitioner on bail more particularly when huge quantity of contraband was allegedly recovered from the petitioner. As per the prosecution case, initially, contraband opium weighing 6.625 Kgs. was recovered from the possession of the petitioner and during investigation, an additional contraband opium weighing 1.55 Kgs. was also recovered from the house of the petitioner, which indicates involvement of the petitioner in drug trafficking activities. Thus, prima facie, the conditions of Section 37 of the NDPS Act are not satisfied in the instant case and hence, considering the rigour of Section 37 of the NDPS Act, but without commenting anything on the merits of the case, I am not inclined to accept the instant bail application, filed on behalf of the petitioner. Accordingly, this second bail application is dismissed.
(Downloaded on 09/04/2024 at 08:41:43 PM)
[2024:RJ-JP:15977] (5 of 5) [CRLMB-1381/2024]
8. However, considering the period of custody, the trial court is directed to make all endeavours to conclude the trial within six months from today. If the trial is not concluded within the aforesaid time period, the petitioner would be at liberty to renew the prayer of bail.
(ANIL KUMAR UPMAN),J Sudhir Asopa/ (Downloaded on 09/04/2024 at 08:41:43 PM) Powered by TCPDF (www.tcpdf.org)