Rajasthan High Court
Mamta Soni W/O Shri Nand Kishore ... vs State Of Rajasthan on 31 August, 2023
Bench: Anil Kumar Upman
[2023:RJ-JP:19880]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Bail Application No. 11329/2022
Mamta Soni W/o Shri Nand Kishore Soni, Aged About 41 Years,
R/o Vill. Devrikhawasa, P.s. Manasa District Neemach, M.p At
Present Tirupati Nagar, Bhasodamandi, Tehsil Bhanpura, District
Mandsaur,m.p. ( At Present Confined In Kota Jail)
----Petitioner
Versus
State of Rajasthan, through PP
----Respondent
For Petitioner(s) : Mr. Samarth Sharma
For Respondent(s) : Mr. Laxman Meena, PP
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
ORDER
Order pronounced on ::: 31/08/2023
Order reserved on ::: 18/08/2023
1. The instant bail application has been filed under Section 439
Cr.P.C. on behalf of the accused-petitioner who has been in
custody since 05.01.2022 in connection with FIR No.04/2022
registered at Police Station Bhimganj Mandi, District Kota City for
offence under Section 8/18 of the NDPS Act. After investigation,
the police has filed chargesheet in this matter before the learned
court below.
2. As per the prosecution case, on 05.01.2022 at about 1:36
AM, SHO Inspector Laxmi Chand Verma, along with other police
team members were on patrolling and when they turned towards
Kota junction, they saw that there was a lady sitting behind the
cycle-stand. The lady was having a bag in her hand. On seeing the
police party, the lady tried to walk away from there. On suspicion,
the lady was stopped and on being asked, she disclosed her name
[2023:RJ-JP:19880] (2 of 5) [CRLMB-11329/2022]
as Mamta Bai. It is alleged that contraband opium weighing total
3.540 Kgs, kept in three packets, were recovered from the bag
carried by the petitioner. Thereafter, samples were taken for
chemical analysis purpose. On reaching the police station, formal
FIR No.04/2022 was registered for offence under Section 8/18 of
the NDPS Act and the petitioner was arrested on 05.01.2022 itself.
3. It is contended by learned counsel for the petitioner that the
accused petitioner has falsely been implicated in this case. He
contended that the petitioner is a lady. She has nothing to do with
the alleged recovery. The recovery has been planted upon her. He
contended that mandatory provisions of Section 52A of the NDPS
Act was not complied with in the instant case, which provides for
Disposal of seized narcotic drugs and psychotropic substances. He
argued 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 objective behind this
provision is to have an element of supervision by the magistrate
over the disposal of seized contraband. Such inventories,
photographs and list of samples drawn with certification by
Magistrates would constitute as a primary evidence. He contended
that the process of drawing of samples has to be in the presence
[2023:RJ-JP:19880] (3 of 5) [CRLMB-11329/2022]
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.
4. He also contended that compliance of mandatory provisions
of Section 50 of the NDPS Act has also not been made in the
instant case. Counsel for the petitioner further submitted that in
this matter, samples were deposited in the FSL on 19.01.2022
while the alleged recovery was made on 05.01.2022, 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. He further argued that inventory report of this case has
been prepared on 03.03.2022 after nearly two months of the
alleged recovery and for this inordinate delay in preparing the
inventory report, no explanation has been given by the agency.
The petitioner is in custody since 05.01.2022 and such, she has
been incarceration for nearly 20 months. He submitted that there
are bleak chances of culmination of trial in near future as only
eights witnesses out of 23 cited witnesses have been examined so
far. The petitioner has no criminal antecedents. He thus, prayed
that the instant application for bail may be accepted and the
petitioner may be released on bail.
5. Per contra, learned Public Prosecutor vehemently and
fervently opposed the bail application. He submitted that
contraband opium weighing 3.54 Kgs was recovered from the bag
[2023:RJ-JP:19880] (4 of 5) [CRLMB-11329/2022]
being carried by the petitioner, which is commercial quantity and
considering the rigour of Section 37 of the NDPS Act, bail should
not be granted.
6 I have heard and considered the submissions advanced by
counsel for the petitioner as well as learned Public Prosecutor and
perusal the material available on record.
7. The petitioner is a lady and as per record, she is in custody
since 05.01.2022 and thus, she has suffered incarceration of
nearly 20 months till date. It also appears from the record that
only eight witnesses out of 23 cited witnesses have been
examined so far and trial will take considerable time in near future
and thus, the fundamental right of the petitioner of speedy trial is
also being violated.
8. 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 petitioner is not guilty, the
same may not be formed at this stage when she has already spent
nearly twenty months in custody. Prolonged incarceration,
generally militates against the most precious fundamental right
guaranteed 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. Further, process of drawing samples has not been done
[2023:RJ-JP:19880] (5 of 5) [CRLMB-11329/2022]
in the presence and under the supervision of the Magistrate which
is in violation of Section 52A of the NDPS Act.
9. Considering the overall facts and circumstances of the case
especially the fact that the petitioner is a lady and is in custody
since 05.01.2022, there is no criminal antecedents of the
petitioner and only eight witnesses have bee examined out of total
23 cited witnesses so far, without making any comments on the
merits/demerits of the case, I deem it just and proper to accept
the instant bail application.
10. Thus, the bail application is allowed and it is directed that
accused petitioner shall be released on bail provided she 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 she
shall appear before that Court and any court to which the matter
is transferred, on all subsequent dates of hearing and as and when
called upon to do so.
11. It is made clear that the petitioner 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 her by this Court.
(ANIL KUMAR UPMAN),J
Sudhir Asopa/
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