Rajasthan High Court - Jodhpur
Narayan Lal vs State Of Rajasthan (2023:Rj-Jd:42407) on 4 December, 2023
Author: Rajendra Prakash Soni
Bench: Rajendra Prakash Soni
[2023:RJ-JD:42407]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
.....
S.B. Criminal Misc. 2nd Bail Application No. 9218/2023
Narayan Lal S/o Shiv Lal Suwalka, Aged about 37 years,
Resident of Nimdi Kheda, Police Station Gangrar, District
Chittorgarh.
(LODGED IN DISTRICT JAIL, CHITTORGARH).
----Petitioner
Versus
State Of Rajasthan through PP
----Respondent
For Petitioner(s) : Mr. Bhagirath Ray Bishnoi.
For Respondent(s) : Mr. Gaurav Singh, PP.
HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI
Order
04/12/2023
1. Arrested in furtherance of FIR No. 26/2022, registered at
Police Station Gangrar, District Chittorgarh, petitioner has filed this
application under section 439 Cr.P.C. for releasing him on bail. The
petitioner is charged for offences punishable under Section 8/15 of
the NDPS Act.
2. The first application for bail was disposed of without
considering the merits of the case since that was not pressed by
the petitioner.
3. The facts in a nutshell are that on 29.01.2022 at about
12.30 P.M. in pursuance to a secret information, the compound
attached with house of Narayanlal was searched by Ratan Singh,
SHO, Gangrar, District Chittorgarh. A swift car and a tractor
without registration number were found parked therein and
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petitioner Narayanlal was found sitting on the driver seat of the
tractor and co-accused Rajulal on the mudguard of the tractor.
After due formalities, total 348 Kg. of poppy straw were recovered
from 23 plastic bags in the trolley of the tractor.
4. To begin at the beginning Shri Bhagirath Ray Bishnoi,
learned counsel representing petitioner has fervently argued that
there is non compliance of provisions of section 50 of the NDPS
Act. Since notice under section 50 of the Act issued to the
petitioner does not mention either any of option or about the right
of the petitioner. It only mentions about the necessity. Seizure
Officer has not complied with the mandatory requirements of
section 50 of the NDPS Act as no option for search, containing
rights of petitioner, was given to the petitioner. Search has been
conducted without complying with the provisions of section 50 of
the NDPS Act, which renders the seizure illegal. While inviting the
attention of the Court towards notice under section 50 of the Act
issued to the petitioner it is contended that no option at all was
given to the petitioner as contemplated under section 50 of the
Act.
6. It is further argued that the samples for chemical analysis
from seized drug were taken in the absence of a Magistrate in
derogation of provisions of Section 52 A of the NDPS Act and such
irregularities malign the entire proceedings; that entire allegations
so levelled by the Police against the petitioner is totally false and
baseless; that there is no concrete evidence to show direct nexus
between the petitioner and the alleged contraband drug, rather
case of the prosecution is based on surmises and conjectures; that
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co-accused Parsu Ram S/o Magni Ram Suthar (Bail
Application No. 12684/2023, decided on 19.10.2023) and
Suresh S/o Late Ratan Lal Jat (Bail Application
No.10687/2022, decided on 18.01.2023) has already been
enlarged on bail and the petitioner too deserves the same
indulgence. Therefore, considering the facts and circumstances
the petitioner may be released on bail.
7. Learned counsel for the petitioner has placed reliance on
the Judgment passed in 2022 Live Law (SC) 267 "Sanjeev &
Ors. Vs. State of Himachal Pradesh."
8. Per contra, learned Public Prosecutor submits that seizure
and sampling was in consonance with the procedure and the
shortcomings pointed out by the learned counsel for the petitioner
cannot be considered at this stage and are to be decided after trial
only. It is further argued that the procedure prescribed under
Sections 50 and 52 A of the NDPS Act were substantially adhered
to.
9. It is further argued by learned Public Prosecutor that the
tractor involved was in the physical possession of the petitioner
which was purchased by him through an agreement to sale from
registered owner and being the agreement holder, he was found
sitting on the tractor accidentally, which connects direct nexus
between the contraband seized and the petitioner, proving alleged
contraband in the physical possession of the petitioner. In respect
of infirmities in notice issued under Section 50 of the Act to the
petitioner, learned Public Prosecutor pointed out that provisions of
section 50 of the NDPS Act would have no application in the
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present case because it is not a case involving the recovery of
contraband during personal search of the petitioner; that as the
recovery was made from a vehicle, provisions of section 43 of the
Act would operate and there was no requirement for the seizure
officer to comply with the provisions of section 50 of the Act. The
issue about non compliance of section 50 can be looked into after
completion of the trial. Substantial compliance of various
provisions under NDPS Act were adhered to.
10. It was submitted that the investigating officer had collected
overwhelming evidence in the case which would prima-facie point
towards the guilt of the accused. That keeping in view the gravity
of offence alleged to have been committed by petitioner, he does
not deserve any leniency, rather they need to be dealt with
severely; that the drug recovered from the petitioner fall within
the ambit of commercial quantity and the bar as contained in
section 37 of the NDPS Act is attracted. He thus, craves rejection
of the petitioner's bail application.
11. I have appreciated the submissions advanced by the
learned defence counsel and learned Public Prosecutor and have
carefully perused the material available on record.
12. The notice under section 50 issued to the petitioner reads
as under:-
"आपकी व आपके कब्जेशुदा नोहरे , बिना नम्बरी ट्र े क्टर मय
ट्र ाली व स्विफ्ट कार की तलाशी लेनी है । यदि आप व आपके कब्जेशुदा
नोहरे , बिना नम्बरी ट्र े क्टर मय ट्र ाली व स्विफ्ट कार में कोई सं दिग्ध वस्तु
या मादक पदार्थ नही मिला तो आपको उनमोचित किया जायेगा। यह
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आपका कानूनी अधिकार है । इस सम्बं ध में आप अपनी लिखित में
सहमति दे वें|"
13. I have carefully considered this argument in the light of
section 50 of the act. When such is the importance of a right given
to an accused person in custody in general, the right by way of
safeguard conferred under Section 50 in the context is all the
more important and valuable. Therefore, it is to be taken as an
imperative requirement on the part of the officer intending to
search to inform the person to be searched of his right that if he
so chooses, he will be searched in the presence of a gazetted
officer or a magistrate. Therefore, the provisions of Section 50 are
mandatory. As per the said provision, offer is to be made that he
will be searched in the presence of a Gazetted Officer or a
Magistrate. That is offer should contain mention of both officers
and right to be discharged.
14. It is not disputed that words in sub-para 1 of section 50 "if
such persons so require" have been interpreted by the Supreme
Court as to mean that the police officer has to make an offer to
the person to be searched. In view of the stringent provisions of
the N.D.P.S. act, the officer is intended to make the person
concerned aware of his rights under statute. When the
requirement under the statute as interpreted by the Supreme
Court is to make the person concerned aware of his rights, it
follows that he has to be informed of all his rights and all the
options open to him under the law. The interpretation which the
learned counsel for the respondent wants to put on this provision
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does not appear to be correct. The importance of making a person
concerned aware of his rights has been highlighted in the said
judgment of the Supreme Court and if the right is so important it
is also natural that a person should know all the options available
under the law, so that he can exercise any of options which may
appear to be best to him in the circumstances. A particular person
may like to be searched in the presence of a gazetted officer, while
the other may like to be searched in the presence of a Magistrate
or vice versa. Therefore, I am of the view that the offer to search
in terms of section 50 NDPS act must contain both the options i.e.
to be searched in the presence of a gazetted officer or a
magistrate. If the main purpose behind the requirement of making
the offer to the person to be searched, as interpreted by the
Supreme Court in the aforesaid decision is to make the person
aware of his rights under the law, there is no scope for the
argument advanced on behalf of the State. Therefore, the
complete offer as required under section 50 NDPS Act has not
been given to the petitioner in the present case.
15. The record further indicates that the investigating agency
had taken samples of contraband without taking recourse to
Section 52 A of the NDPS Act. In the case of "Simranjeet Singh
Vs. State of Punjab" 2023 (3) Crimes (SCC) 168, the Apex
Court has observed that drawing samples from the contraband
recovered at the time of seizure is not in conformity with the law
laid down in the case of "Union of India Vs. Mohanlal & Ors."
(2016) 3 SCC 397 and the same creates a serious doubt about
the prosecution case that substance recovered was a contraband.
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16. Section 52A of the Act contemplates that where any
narcotic drugs has been seized and forwarded to the officer-in-
charge of the nearest police station or to the officer empowered
under section 53, such officer shall prepare an inventory of such
narcotic drugs, containing all details of that narcotic drugs and
make an application to any Magistrate for the purpose of allowing
to draw representative samples of such drugs in the presence of
such Magistrate and certifying the correctness of samples so
drawn.
17. While dealing with scope of section 52 A of the Act, Hon'ble
the Supreme Court in the case of Mangilal (supra) held that Sub-
section (2) of section 52 A of the NDPS Act mandates the
competent officer to prepare an inventory of narcotic drugs
recovered. This has to be followed through an appropriate
application to the Magistrate concerned. Such an application can
be filed for anyone of the aforesaid three purposes. One of them is
purpose of drawal of samples in presence of Magistrate with due
certification. The objective behind this provision is to have an
element of supervision by the Magistrate in taking samples.
Therefore, when there is non-compliance of section 52 A of the
NDSP Act and where a certification of a Magistrate is lacking, any
sampling would not constitute primary evidence. The obvious
reason behind this provision is to inject fair play in the process of
investigation. section 52 A of the Act is a mandatory rule of
evidence which requires the physical presence of a magistrate
followed by an order facilitating his approval for certification of
samples drawn.
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18. In Mohanlal's case (supra), it was held that no sooner the
seizure is effected and the contraband forwarded to the officer-in-
charge of the police station or the officer empowered, the officer
concerned is duty-bound to approach the Magistrate for the
purposes mentioned above including grant of permission to draw
representative samples in his presence, such samples will then be
enlisted and the correctness of samples so drawn certified by the
Magistrate.
19. There is no provision in the Act that mandates taking of
samples at the time of seizure itself. The question of drawing of
samples at the time of seizure, which often takes place in the
absence of the Magistrate, does not in the above scheme of
things, arise. 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.
20. In view of above pronouncements of Hon'ble the Apex
Court, I have perused the seizure memo in which it is stated that
samples were drawn immediately after the seizure, in the absence
of Magistrate.
21. Prima facie, drawing of samples from the contraband drug
at the time of seizure is not in conformity with the law laid down
in above mentioned cases, which brings the case of prosecution
under cloud about the prosecution's case that substance recovered
was a contraband.
22. In the case "Rabi Prakash Vs. State of Odisha", Special
Leave to Appeal (Crl.) No.4169 of 2023, Hon'ble Apex Court
has observed that "prolonged incarceration, generally militates
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against the most precise fundamental right guaranteed under
Article 21 of the Constitution of India and in such a situation the
conditional liberty must override the statutory embargo created
under Section 37 of the NDPS Act."
23. In view of above, prima facie there appears to be serious
gray areas in the case against the petitioner as regards the
sampling of contraband drug.
24. As per charge-sheet, it is admitted case of the prosecution
that the procedure of extracting the samples before the Magistrate
was no followed. Since the samples sent to the FSL were not the
samples extracted before the judicial Magistrate and were the
samples taken out at the time recovery itself.
25. Having regard to the facts of the case and taking into
account totality of circumstances, in my considered opinion, the
submissions made by learned counsel for the petitioner cannot be
completely overlooked. The petitioner is in custody for last more
than 22 months. Be that as it may, while desisting to make any
comment on merits, I feel persuaded to exercise discretion in
favour of petitioner for enlarging him on bail.
26. In this background, I am of the opinion that the restrictions
imposed by Section 37 of the NDPS Act are duly satisfied,
forasmuch this court feels that the petitioner has available to him,
substantial grounds so as to question the prosecution case.
27. In this background, without commenting any opinion on the
merits of the case and having regard to the entirety of the facts
and circumstances of the case, no useful purpose will be served by
[2023:RJ-JD:42407] (10 of 10) [CRLMB-9218/2023]
keeping the petitioner in further incarceration therefore, I am
inclined to grant indulgence of bail to the petitioner.
29. Consequently, the present second bail application is allowed
and it is directed that the petitioner Narayan Lal S/o Shiv Lal
Suwalka, arrested in connection with the F.I.R. No. 26/2022,
registered at Police Station Gangrar, District Chittorgarh, shall be
released on bail provided he furnishes a personal bond and two
surety bonds of sufficient amount to the satisfaction of the learned
Trial Court with the stipulation to appear before that Court on all
dates of hearing and as and when called upon to do so. This order
is subject to the condition that accused, within 7 days of his
release and sureties, on the day of furnishing bail, will also furnish
details of their all bank accounts, with bank and branch name, in
shape of an affidavit, and submit legible copy of their Aadhar
cards as well as front page of Bank pass book, for smooth
recovery of penalty amount, if there arise a need for recovery of
penalty under Section 446 Cr.P.C in future.
(RAJENDRA PRAKASH SONI),J
34-Nitin/-
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