Amarjeet Singh vs State Of Rajasthan
2023 Latest Caselaw 3534 Raj

[2023/RJJD/011765]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
   S.B. Criminal Miscellaneous II Bail Application No. 9654/2022
Amarjeet Singh S/o Shri Awatar Singh, Aged About 48 Years,
R/o 7 Gd, Tehsil Ghadsana, District Sri Ganganagar
(Presently Lodged At Central Jail, Sri Ganganagar)
                                                                   ----Petitioner
                                    Versus
State Of Rajasthan, Through Pp
                                                                 ----Respondent


For Petitioner(s)         :     Mr.Manoj Bohra.
For Respondent(s)         :     Mr.Mahipal Bishnoi, P.P.



            HON'BLE MR. JUSTICE KULDEEP MATHUR

                                    ORDER

25/04/2023

This second application for bail under Section 439 Cr.P.C. has

been filed by the petitioner who has been arrested in connection

with F.I.R. No.23/2020, registered at Police Station New Mandi

Gharsana, District Sri Ganganagar for the offence under Section

8/21, 25 NDPS Act.

The first application for bail was dismissed as not pressed

vide order 04.09.2020.

Learned counsel for the petitioner submitted that during

Nakabandi on 02.02.2020, the present petitioner along with co-

accused Jaskaran Singh was intercepted and from a white plastic

bag carried by them, total 25 boxes of NrxTramadol Hydrochloride

Tablets 100mg Trio-SR were recovered. Each box contained 25

strips and as such the number of total strips recovered from 25

boxes, comes to 625 strips. Further, each strip (10 tablets)

weighed 4.05gms., thus, the total weight 625x4.05=2531.25 gms.

[2023/RJJD/011765] (2 of 7) [CRLMB-9654/2022]

In furtherance of the aforesaid recovery of contraband, FIR

against petitioner for the offences under Sections 8/21, 25 NDPS

Act was lodged on 03.02.2020. The challan against the petitioner

has been filed on 27.07.2020 and charges have been framed on

09.03.2021. Learned counsel for the petitioner submitted that out

of 27 prosecution witnesses as on 10.11.2022, only 2 prosecution

witnesses including Seizure Officer (P.W.2) has been examined

before the competent criminal court. Learned counsel further

submitted that the petitioner has been falsely implicated in the

case and entire investigation has been conducted in violation of

the various provisions of NDPS Act so also Standing Orders, issued

by Government of NDPS being Instruction No. 1/89 dated

13.06.1989. Drawing attention of the court towards statement of

Seizure Officer (P.W.2), learned counsel submitted that out of total

25 boxes alleged to be recovered from the petitioner, a sample of

only 1 strip from 1 box was taken and then sent for FSL. Learned

counsel submitted that since the samples were not collected in an

accurate manner, there is possibility of there being no contraband

in any one or more boxes cannot be ruled out.

Learned counsel submitted that in the facts and

circumstances of the case, the embargo contained in Section 37 of

NDPS Act is not attracted. Reliance was placed on orders of co-

ordinate Bench of this Court passed in the case of Prabhu vs.

State of Rajasthan (S.B. CRLMB No.1141/2023), decided on

06.04.2023, Ramchandra vs. State of Rajasthan (S.B. CRLMB

No.1162/2022), decided on 27.05.2022 and also on the

judgment rendered by this Court in the case of Netram vs. State

[2023/RJJD/011765] (3 of 7) [CRLMB-9654/2022]

of Rajasthan (S.B. Criminal Appeal No.673/2008), decided

on 18.10.2013.

Alternatively, learned counsel for the petitioner submitted

that the petitioner is facing incarceration since 02.02.2020.

Learned counsel further submitted that out of 27 prosecution

witnesses, only 2 witnesses have been examined as on

10.11.2022. In view of aforesaid, it can safely be stated that the

trial is not likely to be completed in near future and thus, looking

to the period of custody already undergone by the petitioner, he

may be enlarged on bail.

Per contra, learned Public Prosecutor opposed the bail

application and submitted that no expiry date was mentioned on

the boxes recovered from the petitioner and all the boxes had

same batch number. Learned Public Prosecutor submitted that the

contraband TRIO-SR was recovered from the conscious possession

of the petitioner and co-accused and thus, no fault can be found in

the action of the Seizure Officer. Learned Public Prosecutor prayed

that the present bail application may be rejected.

Heard.

The relevant portion of the Standing Order No.1/89 dated

13.06.1989, issued by Government of India under Section 52A of

NDPS Act, reliance whereupon has been placed by learned counsel

for the petitioner is reproduced hereinbelow:-

"2.1 All drugs shall be classified, carefully, weighed ad sampled on the spot of seizure.

2.2 All the packages/containers shall be numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substance seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses

[2023/RJJD/011765] (4 of 7) [CRLMB-9654/2022]

(Panchas) and the persons from whose possession the drug is recovered and a mention to this effect should invariably be made in the panchnama drawn on the spot.

2.3......

2.4.......

2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects the packages/container may be carefully bunched in lots on 10 package/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of, 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate)may be drawn.

2.6....

2.7.....

2.8.... "

The relevant portion of the statement of Seizure Officer (Ram Pratap) (P.W.2) recorded before competent criminal court is also reproduced herein-below:-

"eSa ;g ugha crk ldrk fd VªkWekMksy o VªkWekMksy gkbMªksDykjkbZM esa D;k varj gksrk gS] eq>s irk ugha gS fd ;g nksuksa nok foØsrkvksa dh fHkUu&fHkUu Jsf.k;ksa esa vkrs gksA ;g dguk lgh gS fd QnZ iz ih 01 esa xksfy;ksa dh ,Dlik;jh fnukad ugha fy[kh gq;h gSA ;g dguk lgh gS fd izR;sd irs esa ls lSEiy ugha fy;k x;kA ;g lgh gS fd izR;sd fMCcs esa ls lSEiy ugha fy;k x;kA ;g dguk lgh gS fd eq>s ugha irk fd mDr eksVjlkbZfdy dk ekfyd dkSu FkkA ;g dguk lgh gS fd esjh fu"kkunsgh esa cuk;k x;k ?kVukLFky dk uD"kk ekSdk iz ih 21 esa dgh Hkh frjkgk ugha gS o iz ih 21 ds izFke ykbZu esa Hkh lh ls Mh Hkkx esa lM+d vke pkSjkgk vafdr gSA"

Hon'ble the Supreme Court of India in the case of State of

Madhya Pradesh vs. Kajad reported in (2001) 7 SCC 673, has

observed as under:-

"......Negation of bail is the rule and its grant and exception under sub clause (ii) of clause (b) of Section 37(1). For granting the bail the court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is

[2023/RJJD/011765] (5 of 7) [CRLMB-9654/2022]

charged and further that he is not likely to commit any offence while on bail. It has further to be noticed that the conditions for granting the bail, specified in clause

(b) of sub-section (1) of Section 37 are in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the Act is uncalled for."

Hon'ble the Supreme Court in the case of Union of India

vs. Md. Nawaz Khan reported in (2021) 10 SCC 100

considered the position of law with respect to Section 37 of NDPS

Act and was pleased to hold that the test which the High Court are

required to apply while granting bail is whether there are

reasonable grounds to believe that the accused has not committed

an offence and whether he is likely to commit any offence while on

bail. Given the seriousness of offences punishable under the NDPS

Act and in order to curb the menace of drug-trafficking in the

country, stringent parameters for grant of bail under the NDPS Act

have been prescribed.

Similarly, the Apex Court while considering the contours of

Section 37 at time of deciding a bail application in Union of India

vs. Ram Samujh reported in (1999) 9 SCC 429, held as under:-

"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue

[2023/RJJD/011765] (6 of 7) [CRLMB-9654/2022]

their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved."

In the present case, as per prosecution, the contraband

involving commercial quantity was recovered from the conscious

possession of the petitioner. The NDPS Act does not provide for

the manner in which the samples are to be drawn. The guidance is

thus, taken from Standing Instructions No.1/89 and Standing

Instructions No.1/88. The Standing Instructions relied upon by

learned counsel for the petitioner generally deals with the

situations where samples are being taken from different

packets/containers and normally, as per aforesaid instructions, it

is advisable to draw one sample from each packet/container in

case of seizure of more than one packet/container.

As noticed above, the recovered contraband was contained in

one white plastic bag, having 25 boxes of NrxTramadol

Hydrochloride Tablets 100mg Trio-SR in it and each box contained

25 strips, totalling to 625 strips. Further, each strip contained 10

tablets, thus the total number of tablets comes to 6,250. From the

case file, it is evident that packets seized were of identical size

and weight bearing identical marking and batch numbers.

In the considered opinion of this Court, when the recovered

tablets are of identical size and weight with identical marking and

batch numbers, they can be considered as one unit and thus, one

representative sample out of one box having same weight and

quantity of tablets would be sufficient.

It is worthwhile to note here that judgment in the case of

Netram (supra) was rendered by this Court while adjudicating an

[2023/RJJD/011765] (7 of 7) [CRLMB-9654/2022]

appeal in which the question of procedural violation in the matter

of sampling was considered and Court noticed that failure to

collect individual samples from each gunny bag caused great deal

of prejudice to the accused. In the present case, it is however to

be noticed that prima facie, no prejudice would be caused to the

petitioner on account of sending of one strip for FSL. The

petitioner at the stage of trial is entitled to claim that all the strips

were not containing the psychotropic substance and thus, can ask

for retesting/resampling in accordance with law. In other words,

this is not a case of mixing of samples as argued by the learned

counsel for the petitioner and thus, it is not necessary that one

strip from each packet needs to be sent for FSL examination.

As far as argument with regard to grant of bail on the ground

of the period of custody is concerned, suffice it to state that

petitioner is facing incarceration since 02.02.2020 only. The

charges against the petitioner have been framed on 09.03.2021;

trial has already commenced, thus, it cannot be said that there is

an inordinate delay in conducting the trial. The argument thus

deserves to be rejected straightaway.

In the result, the petitioner could not substantiate his

argument that the twin conditions in Section 37 of the NDPS are

fulfilled in the present case, so as to enlarge the petitioner on bail.

Consequently, the application for bail is dismissed.

(KULDEEP MATHUR),J /tarun goyal/

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