Ram Niwas vs State Of Rajasthan
2022 Latest Caselaw 14975 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous Bail Application No. 4299/2022 Ram Niwas S/o Sukh Ram, Aged About 21 Years, Bhaduo Ki Dhani, Bhakhari, P.s. Lohawat, Dist. Jodhpur. (At Present Lodged In Central Jail, Bikaner).

                                                                  ----Petitioner
                                   Versus
State Of Rajasthan, Through Pp                                  ----Respondent


For Petitioner(s)        :     Mr. Ashok Bishnoi
                               Mr. Harshad Bhadu
                               Mr. Vinod Kumar Sharma
For Respondent(s)        :     Mr. S.K. Bishnoi, PP


            HON'BLE MR. JUSTICE FARJAND ALI
                              Order
20/12/2022

1. The instant bail application has been filed under Section 439

Cr.P.C. on behalf of accused-petitioner Ram Niwas S/o Sukh Ram

against the impugned order passed by the learned court below for

the offences under Sections 8/15 of the NDPS Act in FIR No.

147/2021 registered at Police Station Chhatargarh, District

Bikaner.

2. Briefly stated, the facts of the instant case are that a car

bearing registration No. RJ02 CD 1551, being driven by the

accused-petitioner Ram Niwas, was intercepted by the police at

the time of 'nakabandi' near RD Chauraha on 01.10.2021 at about

10:40 P.M. Upon suspicion and after informing the accused

petitioner about his right under Section 50 of the N.D.P.S. Act, the

police officers searched the vehicle. During search, total 5 plastic

bags of poppy husk were found in the car; the bags were emptied

upon the tarpaulin and weighed together. The total weight of the

admixture was 102.5 kilograms; out of which, two samples of 500

grams each, marked A (chemical sample) and B (control sample),

were taken from the seized contraband for investigation and rest

of the contraband weighing 101.5 kilograms was re-packed into

different packets.

3. Learned counsel for the petitioner submits that a false case

has been foisted against the petitioner and the mandatory

provisions of NDPS Act have not been complied with, thus, the

complete recovery, as alleged, has been vitiated on this count

alone. The samples of contraband were not collected individually

from the 05 plastic bags for investigation as per the stipulations in

the Standing Instruction No.1/89 issued by the N.C.B., New Delhi.

As individual weight of all the packets is not known and samples

from each of the five bags were not drawn for testing, it cannot be

said with utmost certainty that each of the packets contained

poppy husk and that the total quantity of the recovered

contraband is 102.5 kilograms. He has been behind the bars since

a long time.

4. He further submits that in the present set of facts, the

detailed judgment passed by this court in Ramchandra v. State

of Rajasthan in S.B. Criminal Misc. 3rd Bail Application No.

1162/2022, wherein the rules pertaining to sample collection

contained in Standing Order No. 1/1989 dated 13.06.1989 issued

by Government of India under Section 52A of NDPS Act have been

enumerated inter alia other aspects, will be applicable.

4. Per contra, learned Public Prosecutor opposed the bail

applications on the ground that the recovered contraband weighed

102.5 kilograms in total and that is way above the commercial

quantity demarcated for poppy husk.

5. Heard. Perused the material available on record. It is

emanating from a perusal of the seizure memo that no procedure

as stipulated under the statutory instructions has been followed.

In Union of India Vs. Bal Mukund reported in (2009) 12 SCC

161, Hon'ble the Supreme Court has held that it is mandatory in

law to comply with the procedure enumerated in Standing

Instruction No. 1/88 dated 15.03.1988 issued by N.C.B, New

Delhi. The procedure of transferring the contents of all five

packets into one and then drawing a sample from the mixture had

caused a serious prejudice to the accused as it could not be

ascertained whether the five packets contained the alleged

contraband or not. The submission of the counsel for the

petitioner that it cannot be ascertained beyond any measure of

doubt that the recovered contraband was above the commercial

quantity is worth considering. The representative samples from

each of the bags were not collected in the correct manner as per

the stipulations in the Standing Instruction No. 1/1989 dated

13.06.1989 issued by Government of India under Section 52A of

NDPS Act. No representative samples were collected individually

from each of the five plastic bags seized by the police and no

conclusive inference can be drawn from whatever samples were

collected. Therefore, the judgment passed by this Court in

Ramchandra (supra) will hold good in the present case since the

five plastic bags were not even weighed separately and as the

samples were wrongly collected, the quantity of the seized

contraband can be assumed to be less than commercial quantity

and the impediment as stipulated in Section 37 of the NDPS Act

will not be applicable in the present case. For instance, if the five

plastic bags were allegedly recovered from the appellant and only

two plastic bags were having contraband substance and rest of the

three plastic bags did not have any contraband; though all maybe

of same colour, when we mix the substances of all the five plastic

bags into one or two; then definitely, the forensic result would as

such test in the affirmative for whole of the quantity when in fact,

contraband was only contained in two bags.

In light of the above observations as well as considering the

judgment passed by Hon'ble the Apex Court in Bal Mukund

(supra) and by this Court in Ramchandra (supra) as well as

looking to the possibility that the trial may take long time to

conclude, this court deems it just and proper to enlarge the

petitioner on bail.

It is to be made clear, in unambiguous terms, that the effect

of this order is limited to the justifiable disposal of the present bail

application and shall not influence the learned trial judge in

reaching a conclusion at the culmination of the trial.

6. Accordingly, the bail application under Section 439 Cr.P.C. is

allowed and it is ordered that the accused-petitioner, named

above, 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 they are called upon to do so.

(FARJAND ALI),J

5-Anshul/-

Powered by TCPDF (www.tcpdf.org)