Sunil S/O Mangilal Vishnoi vs State Of Rajasthan (2024:Rj-Jp:21375)

Rajasthan High Court

Sunil S/O Mangilal Vishnoi vs State Of Rajasthan (2024:Rj-Jp:21375) on 6 May, 2024

Author: Anil Kumar Upman

Bench: Anil Kumar Upman

[2024:RJ-JP:21375]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

     S.B. Criminal Miscellaneous Bail Application No. 4994/2024

Sunil S/o Mangilal Vishnoi, Aged About 24 Years, R/o Dholi,
Police Station Kalyanpur, District Barmer (Raj.) (At Present
Confined in the District Jail, Baran)
                                                                   ----Petitioner
                                    Versus
State of Rajasthan, Through PP
                                                                 ----Respondent
                              Connected With
     S.B. Criminal Miscellaneous Bail Application No. 5002/2024
Kamlesh S/o Mathuralal Lodha, Aged About 22 Years, R/o Dhokri
Kho Police Station Sarthal, District Baran, Raj. (Accused
Petitioner Confined in District Jail Baran)
                                                                   ----Petitioner
                                    Versus
State of Rajasthan, Through PP
                                                                 ----Respondent


For Petitioner(s)         :     Mr. Rajveer Singh Gurjar
                                Mr. Mukesh Pal Jadoun
For Respondent(s)         :     Mr. Mahendra Meena, PP



           HON'BLE MR. JUSTICE ANIL KUMAR UPMAN

                                     Order

06/05/2024

1.    These bail applications have been filed under Section 439

Cr.P.C. on behalf of the petitioners who have been arrested in

connection with FIR No.63/2023 registered at Police Station

Kawai, District Baran for the offences punishable under Section

8/15 of the NDPS Act and Section 3/25 of Arms Act. Later on,

police filed charge-sheet for the offences punishable under

Sections 8/29 and 8/15 of the NDPS Act and Section 3/25 of Arms

Act and Sections 420 and 465 of IPC.




                     (Downloaded on 09/05/2024 at 08:47:22 PM)
 [2024:RJ-JP:21375]                   (2 of 4)                    [CRLMB-4994/2024]



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 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 made 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 reported in (2016) 3 SCC 3749, (2) Mangilal

vs State of Madhya Pradesh reported in 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. He further submits that

samples were deposited in the FSL after 7 days of the alleged

recovery. The inventory of the alleged recovered contraband was

also not prepared in time and it has been prepared after a great

delay of 37 days of the alleged recovery. It is also argued that no

independent witness was associated in the search and seizure

proceedings. Learned counsel also contends that the seizure

officer in his testimony recorded before the learned trial court has

admitted that he neither reduced the information received from

the motbir in writing and prepared any memo in pursuance of

provisions of Section 42 of the NDPS Act nor sent the same to his

superior officer, which amounts to total non-compliance of Section

42 of the NDPS Act. It is also contended that the petitioners are in

custody since their date of arrest and trial will take long time in its

conclusion. It is submitted that no other case under the NDPS Act

                     (Downloaded on 09/05/2024 at 08:47:22 PM)
 [2024:RJ-JP:21375]                     (3 of 4)                     [CRLMB-4994/2024]



has been registered against the petitioners.                   He thus, prays that

these applications for bail may be accepted and the petitioners

may be released on bail.

3.    Per    contra,   learned       Public       Prosecutor       vehemently    and

fervently opposes these bail applications but fairly concedes that

no other case has been registered against the petitioners under

the NDPS Act. He submits that looking to the quantity of

recovered contraband, the rigour of Section 37 of the NDPS Act

applies to the instant case and therefore, bail should not be

granted.

4.    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.

5.    Section 37 of the NDPS Act does not create an absolute

embargo for grant of bail. Further, while considering applications

for grant of bail, it is not required for the Court to record positive

finding that the accused is not guilty. The only requirement of law

is that the Court would look at the material in a broad manner and

reasonably see whether the accuseds' guilt may be proved. The

satisfaction which courts are expected to record i.e, the accused

may not be guilty is only prima facie, based on a reasonable

reading, which does not call for meticulous examination of the

material collected during investigation.

6.    Having regard to the totality of the facts and circumstances

of the case and considering the arguments advanced by learned

counsel for the petitioners as well as learned Public Prosecutor

especially the fact that as per the prosecution case, prima facie, there appears to be non-compliance of provisions of Section 42 (Downloaded on 09/05/2024 at 08:47:22 PM) [2024:RJ-JP:21375] (4 of 4) [CRLMB-4994/2024] and Sub-Section 2 of Section 52A of the NDPS Act; samples were not deposited within 72 hours; inventory was prepared after a delay of nearly 37 days, absence of criminal antecedents as also looking to the custody period of the accused-petitioners but without making any comments on the merits/demerits of the case, I deem it just and proper to accept these bail applications.

7. These bail applications are accordingly, allowed and it is directed that accused-petitioners (1) Sunil S/o Mangilal Vishnoi & (2) Kamlesh S/o Mathuralal Lodha who have been in custody in connection with FIR No.63/2023 PS Kawai, District Baran shall be released on bail provided that each one of them furnishes a personal bond in the sum of Rs.50,000/- together with two sureties in the sum of Rs.25,000/- 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.

8. It is made clear that the petitioners shall not involve in similar offence(s) during currency of bail granted by this Court. If breach of this condition is reported or come to the notice of the Court, the same shall alone be a reason for the trial court to cancel the bail granted to the petitioners by this Court.

(ANIL KUMAR UPMAN),J DEEPA RANI -49-50 (Downloaded on 09/05/2024 at 08:47:22 PM) Powered by TCPDF (www.tcpdf.org)