Rajasthan High Court
Bhawanidan S/O Sagardan vs State Of Rajasthan ... on 29 August, 2023
Bench: Anil Kumar Upman
[2023:RJ-JP:20260]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Bail Application No. 10200/2023
1. Bhawanidan S/o Sagardan, Aged About 32 Years, R/o
Mandelia, Police Station Panchu District Bikaner Presently
Confined In District Jail Jhalawar.
2. Dineshdan S/o Hemdan, Aged About 22 Years, R/o
Mandelia, Police Station Panchu District Bikaner Presently
Confined In District Jail Jhalawar.
----Petitioners
Versus
State of Rajasthan, through PP
----Respondent
For Petitioner(s) : Mr. Bhahmanand Sandu
For Respondent(s) : Mr. Babulal Nasuna, PP
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
Order
29/08/2023
1. The instant bail application has been filed under Section 439
Cr.P.C. on behalf of the accused-petitioners who have been in
custody since 22.09.2022 in connection with FIR No.428/2022
registered at Police Station Bhawani Mandi for offences under
Sections 8/15 and 29 of the NDPS Act. After investigation, the
police has filed chargesheet in this matter before the learned court
below.
2. It is contended by learned counsel for the petitioners that
the accused petitioners have falsely been implicated in this case.
He also contends that the petitioners have nothing to do with the
alleged recovery. The recovery has been planted upon them. He
contended that mandatory provisions of Section 52A of the NDPS
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Act was not complied with in the instant case, which provides for
Disposal of seized narcotic drugs and psychotropic substances. He
submits 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 which mandates a competent officer to prepare an
inventory of narcotic drugs with adequate particulars. This has to
be followed through an appropriate application to the Magistrate
concerned for the purpose of certifying the correctness of
inventory, taking relevant photographs in his presence and
certifying them as true or taking drawal of samples in his presence
with due certification. He contended that the process of drawing of
samples has to be 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. He relied upon the judgment passed in the cases
of (1) Union of India vs Mohanlal & Anr : (2016) 3 SCC 3749
and (2) Mangilal vs State of Madhya Pradesh: 2023 SCC
online SC 862.
3. Counsel for the petitioners further submitted that in this
matter, samples were deposited in the FSL on 28.09.2022 while
the alleged recovery was made on 22.09.2022, which is in
violation of Standing Order No.1/88 dated 15.03.1988. He argued
that according to the Standing Order No.1/88, samples should be
deposited in FSL within 72 hours from the time of drawing
samples. The petitioners are in custody since 22.09.2022 and
such, they have been incarcerated for nearly 11 months. He
submits that after investigation, police has filed chargesheet in the
[2023:RJ-JP:20260] (3 of 5) [CRLMB-10200/2023]
matter and trial will take considerable time in its conclusion. The
petitioners have no criminal antecedents. He thus, prays that the
instant application for bail may be accepted and the petitioners
may be released on bail.
4. Per contra, learned Public Prosecutor vehemently and
fervently opposed the bail application. He submitted that
contraband opium dodachura weighing 1518.48 Kgs. was
recovered from the vehicle in possession of the petitioners, which
is commercial quantity and considering the rigour of Section 37 of
the NDPS Act, bail should not be granted.
5. 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.
6. The process of drawing samples has not been done in the
presence and under the supervision of the Magistrate which is in
violation of Section 52A of the NDPS Act. According to the
Standing Order No.1/88, samples should be deposited in FSL
within 72 hours from the time of drawing samples whereas in the
instant case, samples were deposited in the FSL on 28.09.2022
while the alleged recovery was made on 22.09.2022. As regards
to the twin conditions contained in Section 37 of the NDPS Act,
learned State Counsel has been duly heard. Thus, the first
condition stands complied with. So far as second condition
regarding formation of opinion as to whether there are reasonable
grounds to believe that the petitioners are not guilty, the same
may not be formed at this stage when they have already spent
nearly 11 months in custody. Prolonged incarceration, generally
militates against the most precious fundamental right guaranteed
[2023:RJ-JP:20260] (4 of 5) [CRLMB-10200/2023]
under Article 21 of the Constitution of India and in such a
situation, the conditional liberty must override the embargo
contained under Section 37 of the NDPS Act. Section 37 of the
NDPS Act will not create an absolute embargo for grant of bail.
Further, while considering an application 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 accused's 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.
7. Considering the overall facts and circumstances of the case
especially the fact that the petitioners have no criminal
antecedents, charge sheet has been filed in this matter, period of
custody and trial will take considerable time in its conclusion,
without making any comments on the merits/demerits of the case,
I deem it just and proper to accept the instant bail application.
8. Thus, the bail application is allowed and it is directed that
accused petitioners (1) Bhawanidan S/o Shri Sagardan and (2)
Dineshdan S/o Shri Hemdan, arrested in connection with FIR
No.428/2022 PS Bhawanimandi shall be released on bail provided
each of them furnishes a personal bond in the sum of Rs.50,000/-
(Rupees Fifty Thousand only) together with two sureties in the
sum of Rs.25,000/- (Rupees Twenty Five Thousand only) each to
the satisfaction of the learned trial court with the stipulation that
each of them shall appear before that Court and any court to
[2023:RJ-JP:20260] (5 of 5) [CRLMB-10200/2023]
which the matter is transferred, on all subsequent dates of hearing
and as and when called upon to do so.
9. It is made clear that the petitioners shall not involve in any
other similar offence during currency of the bail. In case, breach
of this condition is reported or come to the notice of the Court, the
trial court can cancel the bail granted to them by this Court.
(ANIL KUMAR UPMAN),J
Sudhir Asopa/110
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