Imilal vs State Of Rajasthan
2022 Latest Caselaw 15014 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous Bail 3rd Application No. 15770/2022

Imilal S/o Sri Gorkha Ram, Aged About 23 Years, R/o Manjuo Ki Dhani Vill. Lodta Achlawata Dechu Ps Dist. Jodhpur (Lodged In Sub Jail Sojat)

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

----Respondent

For Petitioner(s) : Mr. Bhagirath Ray Bishnoi For Respondent(s) : Mr. S.S. Rajpurohit, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

21/12/2022 The instant bail application has been filed under Section 439

Cr.P.C. on behalf of accused-petitioner Imilal S/o Sri Gorkha 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.

081/2018 registered at Police Station Shivpura, District Pali.

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

bearing registration No. MH02 NA 8438 was parked in an

abandoned condition behind the bushes in a suspicious manner

near Nvgaj Peer Baba Dargarh hill, the car was locked and

something was covered with tarpaulin on the backseat of the car.

Upon suspicion, the police officers searched the vehicle and during

search, total nine bags of poppy husk were found in the Car

containing a total of 188 kilograms of Poppy Straw which was

seized by the police and the seizing officer took one kilogram of

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poppy straw from each bag for sampling respectively; all the

samples of one kilogram each collected from separate bags were

mixed together in a single bag and thereafter, two samples of one

kilogram each were taken from the aforesaid admixture of nine

kilograms.

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. Neither the accused-appellant was present on the spot nor

any recovery has been effected from him. Learned counsel

submits that the co-accused Mohan Ram S/o Sh. Kana Ram has

been granted bail by a co-ordinate bench of this Court and the

case of the present petitioner is on better footing than that of co-

accused Mohan Ram S/o Sh. Kana Ram. As individual weight of all

the packets is known and samples from each of the nine bags

were drawn for testing but these samples were mixed together

and two samples from this admixture were sent to FSL, it cannot

be said with utmost certainty that each of the packets contained

poppy Straw and that the total quantity of the recovered

contraband is 188 kilograms. He has been behind the bars since a

long time.

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

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

enumerated inter alia other aspects, will be applicable.

Per contra, learned Public Prosecutor opposed the bail

applications on the ground that the recovered contraband weighed

188 kilograms in total and that is way above the commercial

quantity demarcated for poppy Straw.

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. Since the doctrine of beyond reasonable doubt is applicable

in criminal matters, therefore, even the initial duty lies upon the

prosecution to show that the accused-appellants were having

contraband in all the bags. If the samples taken from all the bags

are mixed and one sample is taken from the admixture, the

possibility cannot be ruled out that only one bag was containing

contraband. 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 nine bags seized by the police and no conclusive inference can

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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 samples were taken from each

of the nine bags, mixed together into an admixture and thereafter,

two samples were taken from that admixture, 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. The alleged

seized contraband contained in each of the packets weighed well

below the commercial quantity and since it cannot be established

that each of the bag was filled with the alleged contraband,

therefore, the embargo contained under Section 37 of NDPS Act

would not be attracted.

Here, in this case the alleged ceased contraband contained in

each of the packets weighed well below commercial quantity and

since it cannot be established that each of the bags was filled with

the alleged contraband, therefore, the embargo contained under

Section 37 of NDPS Act would not be attracted. Though, it is

apparent on the face of the record that the petitioner was neither

present at the scene nor any recovery of contraband was effected

from him but arguendo, even if a case under the provisions of

NDPS Act is to be envisaged against the petitioner, then in light of

the observations made above, the bar contained under Section 37

would not operate.

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 and the accused deserved to be enlarged on bail

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on the basis of principle of parity, 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.

Accordingly, the 3rd 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 287-amit/-

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