Rajasthan High Court - Jodhpur
Abdul Ali vs State Of Rajasthan (2023:Rj-Jd:42196) on 5 December, 2023
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2023:RJ-JD:42196]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 15282/2023
Abdul Ali S/o Sh. Rafiq Mohammad G/s Khusi Mohammad Ram,
Aged About 31 Years, R/o Khanuwali P.s. Rawla Dist. Anoopgarh
(Presently Lodged In Sub Jail, Anoopgarh)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Devi Lal Rawla.
For Respondent(s) : Mr. A.R. Choudhary.
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order
05/12/2023
This application for bail under Section 439 Cr.P.C. has been
filed by the petitioner who has been arrested in connection with
FIR No.139/2020 registered at Police Station Rawla, District
Sriganganagar, for offences under Sections 8/22 and 29 of the
NDPS Act.
Learned counsel for the petitioner submitted that as per
prosecution, the police on 15.07.2020 at 10:25 am, while on a
routine round of the city, having suspicion on the activities of the
petitioner, stopped him and recovered psychotropic substance
(Tramadol Tablets) weighing 600 gms. from his conscious
possession. Learned counsel submitted that the entire seizure
proceeding suffers from illegalities. Drawing attention of the Court
towards the challan papers and statements of the Seizure Officer
(PW-1) recorded before the competent criminal court, learned
[2023:RJ-JD:42196] (2 of 4) [CRLMB-15282/2023]
counsel submitted that neither the samples were taken nor the
seizure memo was prepared at the spot and all the papers were
prepared by the police after taking the petitioner to the nearby
police station.
Placing reliance on the judgment passed by Hon'ble the
Supreme Court in the case of Kuldeep Singh vs. State of
Punjab reported in AIR 2011 SC (Supp.) 787, learned counsel
contended that non-collection of the samples as per the procedure
laid down, at the initial stage of seizure is an incurable defect and
the entire seizure proceedings thus, comes under a shadow of
doubt.
Learned counsel further submitted that the petitioner is in
judicial custody since 15.07.2020 and till date, statements of only
5 witnesses out of total 15 cited prosecution witnesses have been
recorded before competent criminal court. Learned counsel
submitted that delay in trial is not attributable to the present
petitioner and to substantiate this contention, attention of the
Court was drawn towards order sheets of the competent criminal
court.
Learned counsel placed reliance on the decision of Hon'ble
the Supreme Court in the case of Mohd. Muslim @ Hussain Vs.
State (NCT of Delhi) Special Leave Petition (Criminal)
No(s).915 of 2023 and Rabi Prakash vs. State of Odisha
(Special Leave Petition(Criminal) No(s).4169/23 and prayed
that the petitioner be enlarged on bail.
Per contra, learned Public Prosecutor opposed the bail
application and submitted that huge quantity of psychotropic
[2023:RJ-JD:42196] (3 of 4) [CRLMB-15282/2023]
substance was recovered from the conscious possession of the
petitioner, therefore, looking to seriousness of the accusations, the
petitioner does not deserve to be enlarged on bail by this Court.
Heard learned counsel for the petitioner and learned Public
Prosecutor. Perused the material available on record.
Having considered the submissions advanced at bar and
having perused the FIR and challan papers, this Court prima facie
finds sufficient merit in the arguments advanced by learned
counsel for the petitioner that since the seizure memo was not
prepared and the samples were not taken at the spot/place of
occurrence, the seizure proceedings becomes doubtful thereby
affecting the credibility of the prosecution's case. This Court also
prima facie finds that the petitioner who is aged about 31 years, is
in judicial custody since 15.07.2020 and till date, statements of
only 5 witnesses out of total 15 cited prosecution witnesses have
been recorded before competent criminal court. This Court also
prima facie finds that delay in trial is not attributable to the
present petitioner. In the prima facie opinion of this Court, twin
conditions of Section 37 of the NDPS Act are duly satisfied. Thus,
without expressing any opinion on the merits/demerits of the
case, this Court deems it a fit case to enlarge the petitioner on
bail.
Accordingly, the bail application under Section 439 Cr.P.C. is
allowed and it is ordered that the accused-petitioner- Abdul Ali
S/o Sh. Rafiq Mohammad G/s Khusi Mohammad Ram shall
be enlarged on bail in connection with FIR No.139/2020 registered
at Police Station Rawla, District Sriganganagar, provided he
[2023:RJ-JD:42196] (4 of 4) [CRLMB-15282/2023]
furnishes a personal bond in the sum of Rs.1,00,000/- with two
sureties of Rs.50,000/- each to the satisfaction of the learned trial
Judge for his appearance before the court concerned on all the
dates of hearing as and when called upon to so.
It is however, made clear that findings recorded/observations
made above are for limited purposes of adjudication of bail
application. The trial court shall not get prejudiced by the same.
(KULDEEP MATHUR),J
70-Tikam/-
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