Rajasthan High Court - Jodhpur
Balkishan Alias Lala Alias Mofat vs Union Of India (2023:Rj-Jd:42339) on 4 December, 2023
Author: Rajendra Prakash Soni
Bench: Rajendra Prakash Soni
[2023:RJ-JD:42339]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
....
S.B. Criminal Misc. 2nd Bail Application No. 12293/2023.
Balkishan alias Lala Alias Mofat S/o Suresh Chandra Dhakar,
aged about 27 years, R/o Khempura Basti, Village Kanera, Tehsil
Nimbahera, District Chittorgarh.
(At Present Lodged In District Jail, Chittorgarh)
----Petitioner
Versus
Union of India through CBN, Nimach
----Respondent
For Petitioner(s) : Mr. Ravindra Kumar Charan.
For Respondent(s) : Mr. K.S. Nahar, Special PP for CBN.
HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI
Order
04/12/2023
1. Through instant petition, accused has come before this
Court for grant of bail under section 439 of the Cr.P.C. in
connection with crime registered pursuant to Case No. 1/2022
CBN, Nimach (Madhya Pradesh) in respect of offences punishable
under Section(s) 8/15, 8/18 and 8/25 of the
Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Earlier, petitioner made endeavor for seeking bail by way of
filing first bail application but the same was dismissed as
withdrawn with liberty to file fresh after recording of the statement
of the seizure officer.
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3. Before delving upon questions of bail, it will be apt to lay
factual canvass which unfolds that on 10.01.2022 at 20.40 hours,
residential house of petitioner Balkishan situated in Khempura
Basti, Village Kanera in tehsil Nimbahera was raided along with his
team by the Purshotam Meena, inspector of CBN Neemach (M.P.).
When team reached to the house, two persons managed to fled
away through the roof of the house. After following due procedure,
a pickup vehicle No. RJ-27-GC-5765 which was found parked in
the compound, was searched and recovery of 1108.200 Kg. of
poppy straw and 650 grams of opium was made from the vehicle.
4. To begin at the beginning Shri Ravindra Kumar Charan,
learned counsel representing petitioner has fervently argued that
search was conducted between sunset and sunrise without
complying with the provisions of Section 42 of the NDPS Act; that
there was non-compliance of mandatory procedure of seizure and
sampling, which prima facie renders the seizure illegal. It is further
argued that the samples for chemical analysis from seized drug
were taken on the spot of recovery itself and 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.
5. While inviting the attention of the Court towards cross-
examinations conducted from the seizure officer Purshottam
Meena (PW-1), it is contended that he has admitted the fact that
no evidence whatsoever was collected regarding the title or
ownership or actual physical possession of the premises in
question during the investigation. Even no documentary evidence
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was collected in respect of the premises, wherein the pickup
vehicle was found parked.
6. It is also argued that neither the petitioner was present on
the spot at the time of recovery and no member of raid party even
knew him before.
7. It is further argued that any of family members of petitioner
were also not found residing in the house or compound, therefore
petitioner has been implicated in the present case merely on the
basis of conjectures and surmises; that petitioner is innocent
person and a false case has been foisted against him; that nothing
has been recovered from possession of the petitioner; that there is
no evidence worth the name on record to connect the petitioner
with the alleged crime; that there is no concrete evidence to show
direct nexus between the petitioner and the alleged contraband
drug. With the aforesaid submissions, it was prayed that the
present petition be allowed and petitioner may be enlarged on bail.
8. Learned counsel for the petitioner has further argued that
there is infirmity in drawing samples from the contraband and
proper procedure has not been followed by the seizure officer while
drawing mixed samples of drug recovered, therefore mixed
samples which were taken out cannot be treated as representative
of all the contraband sized from the petitioner.
9. Learned counsel for the petitioner has placed reliance on the
judgment rendered by Hon'ble Supreme Court in the case of State
of Rajasthan Vs. Jag Raj Singh alias Hansa reported in 2016
CRI.L.J. 3336.
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10. Per contra, learned Public Prosecutor submits that the
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 Section 52A of the NDPS Act was substantially adhered to;
that there is overwhelming evidence adduced on record suggestive
of the fact that bail petitioner indulges in the illegal trade of
narcotics; that the petitioner do not deserve any sympathy as the
petitioner is a drug peddler. Contraband of commercial quantity
has been seized from the petitioner; that release of petitioner will
hamper the trial; that restrictions of Section 37 of the N.D.P.S. Act
clearly operate against the petitioner; that petitioner has been
charged for the offences punishable by severe punishment.
Therefore, he does not deserve to be released on bail.
11. Arguments advanced by learned counsels for the parties
were heard at length and record was also perused.
12. The seizure officer Purshottam Meena (PW-1) in his
deposition during the trial has deposed as under:-
"It is correct to say that search and seizure was made
after sunset...... I did not obtain any warrant from the
Magistrate for the night search.... No documents were
found during the search regarding the ownership and
possession of the house or the compound that would
indicate the petitioner's ownership and possession...... I
didn't know the person who fled away from the house.....
It is correct to say that the procedure of extracting the
samples before the Magistrate was not followed. It is
correct to say that the samples sent to the Forensic
Laboratory were not the samples, extracted before the
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Judicial Magistrate.... The petitioner was not present at the
spot at the time of the search and seizure...."
13. The petitioner seeks bail inter alia on ground of breach of
Section 42 of the NDPS Act. This provision deals with the powers
of entry, search, seizure and arrest without warrant or
authorization. Hon'ble the Apex Court has observed that Section
42 (1) indicates that any authorized officer can carry out search
between sunrise and sunset without warrant or authorization. The
scheme further indicates that in the event, when the search is to
be made between sunset and sunrise, warrant would necessary
unless the officer has reason to believe that a search warrant or
authorization cannot be obtained without affording the opportunity
to the offender to escape. Besides it, the grounds of belief have to
be recorded in the writing by the seizure officer.
14. In the instant case, it is not in dispute that the house of the
petitioner was searched and contraband drug was seized between
sunset and sunrise without any warrant or authorization. It is not
the statement of seizure officer that he did not have sufficient
time to obtain warrant or authorization without affording
opportunity to the petitioner to escape or conceal the evidence. He
also has not recorded reason for such belief in terms of proviso to
Section 42 (1) of the NDPS Act.
15. The mere presence of the superintending officer with the
seizure officer at the time of search and seizure does not eliminate
the necessity of a search warrant or authorization as required by
law. Furthermore, there is no signature of the superintending
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officer on the seizure memo which prima facie proves his
presence.
16. The record further indicates that the investigating agency
had taken samples of contraband without taking recourse to
Section 52A 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 of 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's case that substance recovered was a
contraband.
17. 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.
18. 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 52A 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
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be filed for anyone of the aforesaid three purposes. One of them is
purpose of drawal of samples in presence of Magistrate for due
certification of samples. 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 52A
of the NDPS 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 52A 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
certifying samples drawn.
19. 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 would be
certified by the Magistrate.
20. 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.
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21. In view of above pronouncements of Hon'ble the Apex
Court, I have perused the evidence of seizure officer Purshottam
Meena (PW-1) in which he has stated that samples were drawn
immediately after the seizure, in the absence of a Magistrate.
22. Prima facie the act of Purshottam Meena (PW-1) of drawing
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.
23. Arguments of learned counsel for the petitioner in respect of
samples, not being representative prima facie also appears to be
tenable. According to the seizure memo, seizure officer had seized
a total of 53 bags of contraband drug which were marked as mark
1 to mark 53. These 53 bags were divided into a total of 7 lots by
the seizure officer and these lots were marked as lot A to lot G.
Mixed samples from each lot were drawn by the seizure officer. In
other words, only 7 samples were taken from lot A to lot G,
whereas according to law, a total of 53 samples were required to
be taken from all the 53 bags of contraband drug recovered,
which could have been representative. In the facts and
circumstances of the present case, keeping in view the 53 bags of
contraband recovered, there is prima facie infirmity in the manner
in which samples have been drawn.
24. The mere finding of the petitioner's ID or his personal
documents in the house or vehicle cannot be considered as
ownership or occupation of that premises or vehicle by that
person.
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25. 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
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."
26. In view of the deposition of seizure officer as narrated
above, prima facie there appears to be serious gray areas in the
case against the petitioner as regards the exclusive ownership and
possession of the premises of recovery.
27. In this view of the matter, this Court is of the opinion that
conditions of Section 37 of the NDPS Act are duly satisfied qua the
petitioner, forasmuch this Court feels that the petitioner has
available to him substantial grounds so as to question the
prosecution case. The petitioner is in custody for the last almost
21 months. The bail rejection order goes to show that petitioner is
not involved in any other case under NDPS Act. This Court without
commenting on the merits of the case, in the facts and
circumstances peculiar to this case, and for the reasons mentioned
above, the petitioner makes a case for bail.
28. Consequently, the present second bail application is allowed
and it is directed that the petitioner Balkishan alias Lala Alias
Mofat S/o Suresh Chandra Dhakar, arrested in connection with
Case No. 1/2022 CBN, Nimach (Madhya Pradesh), shall be
released on bail provided he furnishes a personal bond and two
surety bonds of sufficient amount to the satisfaction of the learned
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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
3-Mohan/
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