Kalu S/O Chagna Gurjar vs State Of Rajasthan
2021 Latest Caselaw 3521 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

    S.B. Criminal Miscellaneous Bail Application No. 2670/2021

Kalu S/o Chagna Gurjar, Aged About 20 Years, R/o Vill.
Jorawarpura Pithawas PS Masuda Distt. Ajmer Raj. (Presently
Confined In Distt. Jail Kota).
                                                        ----Accused-Petitioner
                                   Versus
State Of Rajasthan, Through PP
                                                                ----Respondent

Connected With S.B. Criminal Miscellaneous Bail Application No. 11380/2021 Sanwarlal S/o Siyaram, Aged About 24 Years, R/o Vill. Sawaipura PS Bhinai Distt. Ajmer Raj. (Presently Confined In Distt. Jail Ajmer).

----Accused-Petitioner Versus State Of Rajasthan, Through PP

----Respondent

For Petitioner(s) : Mr. Anil Kumar Upman with Mr. Rajveer Singh For Respondent(s) : Mr. F.R. Meena, PP

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Order

10/08/2021

The present bail applications have been filed under Section

439 Cr.P.C. The petitioners have been arrested in connection with

FIR No. 04/2020 registered at Police Station Bhinai, District Ajmer

for the offence under Section(s) 8/15 and 8/18 of NDPS Act (for

brevity, "the Act of 1985").

Learned counsel for the petitioners, drawing attention of this

Court towards the vehicle tracking record dated 04.01.2020 of the

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vehicle no. RJ01 UA 6979 and reply by the SHO Police Station

Bhinai, District Ajmer dated 13.07.2021 furnished under the Right

to Information Act, 2005 (for brevity - 'the Act of 2005') wherein

it was stated that on 04.01.2020, Police Station Bhinai was having

Government vehicle Bolero RJ01 UA 6979, submitted that the

genesis of the prosecution story, as revealed from the FIR that the

police party left the Police Station at about 12.20 PM on

04.01.2020 in Government vehicle, stands falsified inasmuch as

the vehicle tracking record discloses crossing of the toll plaza in

between Ajmer and Bhilwara at about 12.06 o'clock. He submitted

that two different seizure memos have been prepared by the

prosecution for seizing the same articles and the order in which

the accused persons have put their signature(s)/thumb impression

differs in both the seizure memos establishing that the

investigation was not conducted properly. Drawing attention of

this Court towards notice given under Section 42(2) of the Act of

1985, he submitted that two notices were prepared at the same

time; one in hand writing; whereas, another is computer printed

for which there is no explanation. Learned counsel submitted that

there has been violation of the mandatory provisions contained in

Section 100 Cr.P.C. inasmuch as there was absence of independent

witnesses at the time of search and seizure. He further submitted

that the search memo does not reveal name of the persons who

refused to be the witness. Learned counsel submitted that the

seizure memo discloses seizure of poppy seeds as well as poppy

straws; but, their separate weight is not reflected. Drawing

attention of this Court towards the definition of poppy straw under

the Act of 1985, learned counsel submitted that poppy seeds are

excluded from it and in absence of their separate weight having

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been mentioned, it cannot be held that contraband allegedly

recovered from the petitioners' possession is of commercial

quantity. Learned counsel submitted that there has been violation

of mandatory provisions contained in Section 50 inasmuch search

and seizure, which ought to be conducted in the presence of a

Gazetted Officer, was conducted by an Officer of the Assistant

Sub-Inspector rank, who was not a Gazetted Officer. In support of

his submissions, learned counsel relied upon judgments of the

Hon'ble Apex Court in case of Arif Khan @ Agha Khan Vs. State

of Uttarakhand: 2018 Cr.L.R. (SC) 464 and a co-ordinate

Bench judgment of this Court dated 24.06.2021 in S.B. Criminal

Miscellaneous Bail Application No. 6775/2021: Kalu Ram Vs. State

of Rajasthan.

Qua limitation contained under Section 37 of the Act of 1985,

learned counsel for the petitioners, relying upon the judgment of

the Hon'ble Apex Court of India in case of Ranjitsing

Brahmajeetsing Sharma Vs. State of Maharashtra and Anr.:

2005(5) SRJ 134, submitted that this Court should not insist

upon enlarging the petitioners on bail only upon satisfaction of

twin conditions laid down therein. He submitted that the

petitioners are labourers at the dhaba of co-accused Ranjeet Singh

and they have falsely been implicated in this case as they were

unaware of the nature of contraband as is apparent from the

seizure memo. Learned counsel submitted that the petitioners are

in custody since 04.01.2020 and they may be extended benefit of

bail.

Opposing these bail applications, learned Public Prosecutor

submitted that the provisions of Section 50 of the Act of 1985

were complied with in letter and spirit inasmuch as the petitioners

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were afforded an opportunity to be searched before the

Magistrate/Gazetted Officer and only on their refusal, search was

conducted by the Assistant Sub-Inspector. With regard to vehicle

tracking record and reply dated 13.07.2021 under the Act of 2005

of the SHO Police Station Bhinai, District Ajmer, he submitted that

same are not the part of the charge sheet and cannot be taken

into consideration by this Court at this stage. With regard to

preparation of two seizure memos/notices under Section 42(2) of

the Act of 1950, learned counsel submitted that the same are

subject matter of trial. Learned Public Prosecutor submitted that

there has been recovery of contraband of commercial quantity

from the possession of the petitioners and in view of the provision

of Section 37 of the Act of 1985, the petitioners do not deserve

indulgence of bail.

Heard learned counsels for the parties and perused the

record.

In so far as non-compliance of Section 50 of the Act of 1950

is concerned, a perusal of the provision makes it clear that the

same is confined to the search of a person only. A Constitution

Bench of the Hon'ble Apex Court has, in case of State of Punjab

Vs. Baldev Singh: 1999 6 SCC 172, categorically held that

provision of Section 50 don't extend beyond the personal search.

It is trite law that in so far as search of a premises is concerned,

Section 50 has no applicability.

Recently, a three judges Bench of the Hon'ble Apex Court

vide judgment dated 15.10.2019 in case of State of Punjab Vs.

Baljinder Singh and Anr.: (2019) 10 SCC 473 held as under:

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"14. At this stage we may also consider the following observations from the decision of this Court in Ajmer Singh v. State of Haryana: (SCC pp.752-753, para 15)

"15. The learned Counsel for the Appellant contended that the provision of Section 50 of the Act would also apply, while searching the bag, briefcase, etc. carried by the person and its non- compliance would be fatal to the proceedings initiated under the Act. We find no merit in the contention of the learned Counsel. It requires to be noticed that the question of compliance or non- compliance with Section 50 of the NDPS Act is relevant only where search of a person is involved and the said Section is not applicable nor attracted where no search of a person is involved. Search and recovery from a bag, briefcase, container, etc. does not come within the ambit of Section 50 of the NDPS Act, because firstly, Section 50 expressly speaks of search of person only. Secondly, the Section speaks of taking of the person to be searched by the gazetted officer or a Magistrate for the purpose of search. Thirdly, this issue in our considered opinion is no more res integra in view of the observations made by this Court in Madan Lal v. State of H.P. The Court has observed: (SCC p.471, para 16)

'16. A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises (see Kalema Tumba v.

State of Maharashtra, State of Punjab v.

Baldev Singh and Gurbax Singh v. State of Haryana). The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh case. Above being the position, the contention regarding non- compliance with Section 50 of the Act is also without any substance.'"

15. As regards applicability of the requirements Under Section 50 of the Act is concerned, it is well settled that the mandate of Section 50 of the Act is confined to "personal search" and not to search of a vehicle or a container or premises."

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In view of the aforesaid proposition, the judgment in the

case of Arif Khan @ Agha Khan (supra) and/or in the case of Kalu

Ram (supra) are of no help to the petitioners.

Indisputably, in the present case, contraband has been

recovered from the residential premises of co-accused and hence,

Section 50 has no applicability. Even otherwise also, learned

counsel for the petitioners has not disputed tender of notices to

the petitioners under Section 50 and their endorsement on it as to

their refusal to be examined by a Magistrate/Gazetted Officer.

The vehicle tracking record and the reply dated 13.07.2021

are not part of the charge sheet and the same being documents of

defence, may be considered by the learned trial Court at the

appropriate stage, if so tendered in the evidence.

A perusal of the material contained in charge sheet reveals

that the poppy straw recovered from possession of the petitioners

is of commercial quantity. The seizure memo reflects that the

poppy straw deviod of poppy seeds to be of commercial quantity.

In these circumstances, the fact that in some of the bags, poppy

seeds were also found along with poppy straws and they were not

weighed separately, would not render the contraband to be less

than commercial quantity.

In so far as submission of the learned counsel for the

petitioners qua tainted investigation is concerned, suffice it to say

that the same are subject matter of trial and cannot be

appreciated by this Court at this stage.

The submission of the learned counsel for the petitioners qua

Section 37 of the Act of 1985, relying upon the judgment of the

Hon'ble Apex Court in case of Ranjitsing Brahmajeetsing Sharma

(supra) cannot be accepted in view of mandatory provisions

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contained under Section 37(1)(b)(ii). The Hon'ble Apex Court has,

in case of Union of India Vs. Ratan Malik: (2009) 2 SCC 624,

held that recording a satisfaction in terms of Section 37(1)(b)(ii)

of the Act of 1950 is a mandatory pre-requisite before extending

an accused benefit of bail. The aforesaid principal enunciated by

the Hon'ble Apex Court admits no exception and is being

consistently followed.

Very recently, a Bench of Hon'ble Apex Court in the case of

State (GNCT of Delhi) Narcotics Control Bureau Vs. Lokesh

Chadha: AIR 2021 SC 1436 held as under:

"9. While considering the rival submissions, we must at the outset advert to the manner in which the learned Single Judge of the High Court has dealt with the application for suspension of sentence Under Section 389(1) of Cr.P.C. The offence of which the respondent has been convicted by the Special Judge arises out of the provisions of Sections 23(c) and 25A of the NDPS Act. The findings of the learned Special Judge which have been arrived at after a trial on the basis of evidence which has been adduced indicate that the respondent who was a proprietor of a courier agency was complicit with a foreign national in the booking of two parcels which were found to contain 325 grams of heroin and 390 grams of pseudoephedrine. Section 37 of the NDPS Act stipulates that no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27A and also for offences involving a commercial quantity shall be released on bail, where the public prosecutor opposes the application, unless the Court is satisfied "that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail". Where the trial has ended in an order of conviction, the High Court, when a suspension of sentence is sought Under Section 389(1) of Cr.P.C., must be duly cognizant of the fact that a finding of guilt has been arrived at by the trial Judge at the conclusion of the trial. This is not to say that the High Court is deprived of its power to suspend the sentence under Section 389(1) of Cr.P.C. The High Court may do so for sufficient reasons which must have a bearing on the public policy underlying the incorporation of Section 37 of the NDPS Act. At this stage, we will refer to the decision of a two-Judge Bench of this Court in Preet Pal

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Singh v. State of Uttar Pradesh: (2020) 8 SCC 645 where Justice Indira Banerjee, speaking for the Court, observed as follows:

"35. There is a difference between grant of bail under Section 439 of the Cr.P.C. in case of pre- trial arrest and suspension of sentence under Section 389 of the Cr.P.C. and grant of bail, post- conviction. In the earlier case there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the Rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P and Anr. (AIR 2018 SC

980) (supra). However, in case of post- conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the Rule and jail an exception attracted, once there is conviction upon trial. Rather, the Court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) of the Cr.P.C."

10. The principles which must guide the grant of bail in a case under the NDPS Act have been reiterated in several decisions of this Court and we may refer to the decision in State of Kerala v. Rajesh: (2020) 12 SCC

122. The High Court unfortunately, in the present case, has not applied its mind to the governing provisions of the NDPS Act. On the basis of the material which emerged before the learned Special Judge and which forms the basis of the order of conviction, we are of the view that no case for suspension of sentence under Section 389(1) of Cr.P.C. was established. The order granting suspension of sentence under Section 389(1) of Cr.P.C. is unsustainable and would accordingly have to be set aside."

There is nothing on record to warrant a finding that the

petitioners are not prima facie involved in the offences.

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In view thereof, these bail applications are dismissed.

Needles to say that these observations shall not prejudice merit of

the case pending trial.

(MAHENDAR KUMAR GOYAL),J

MADAN/209-210

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