Rajasthan High Court
Ratan Singh S/O Narwar Singh @ Narvel ... vs The State Of Rajasthan ... on 12 December, 2023
Author: Anil Kumar Upman
Bench: Anil Kumar Upman
[2023:RJ-JP:39276]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous II Bail Application No. 13535/2023
Ratan Singh S/o Narwar Singh @ Narvel Singh, Aged About 43
Years, R/o Pritam Singhbala Pallamegha Police Station Sadar
Firozpur Dist. Firozpur (Punjab) (At Present In Sub Jail
Bhawanimandi)
----Petitioner
Versus
The State Of Rajasthan, through P.P
----Respondent
For Petitioner(s) : Mr. Ali Mohd. Khan
For Respondent(s) : Mr. G.S. Rathore, GA-cum-AAG with
Mr. Kirtivardhan Singh
Mr. Sanjeev Mahala, PP
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
Order
12/12/2023
1. The instant bail application has been filed under Section 439
Cr.P.C. on behalf of the accused-petitioner who is in custody since
05.03.2020 in connection with FIR No.22/2020 registered at Police
Station Mishroli District Jhalawar for offences under Sections 8/15
of the NDPS Act. After investigation, the police has filed
chargesheet for offences under Sections 8/15 and 29 of the NDPS
Act before the learned court below.
2. The first application for bail (No.11503/2022) was dismissed
as withdrawn vide order dated 12.07.2023 with liberty to file fresh
bail application after recording statement of seizure officer at trial.
Now, the statement of the seizure officer has been recorded at
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trial and as such, this second application for bail under Section
439 Cr.P.C. has been filed.
3. It is contended by learned counsel for the petitioner that the
accused petitioner has falsely been implicated in this case. He
contends that the petitioner has nothing to do with the alleged
recovery of contraband opium dodachura. The alleged recovery of
contraband was affected on 05.03.2020 from a truck bearing
registration No. PB 05 V9558, which was being driven by Ratan
Singh, petitioner herein. As per prosecution case, Rupa Singh
was the cleaner in the said truck. Counsel submits that as per
prosecution case, contraband opium dodachura weighing 301 Kgs
and 840 Gram Kgs. kept in 15 sacks, were recovered from the
truck.
4. He submits that as per the FIR, the substance which were
kept in those 15 sacks, were got collected on a plastic cloth
(Tirpal) and thereafter, the same was weighed on electronic
weighing machine and samples were drawn from the mixture. He
thus, submits that the samples were not drawn in conformity with
the guidelines/instructions of Standing Order No.1/89 issued by
the NCB, New Delhi as per which, the Seizure Officer was required
to take separate sample from each sack. Counsel further submits
that the procedure of sampling has to be done in accordance with
the directions given by the Apex Court in the case of Gaunter
Edwin Kircher vs State of Goa, Secretariat Panaji, Goa (AIR
1993 SC 1456) decided on 16.03.1993 in which it was clarified
that sample has to be taken from each packet. As separate weight
of all the sacks were not known and sample from each sack was
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not drawn for sampling, it cannot be said with utmost certainty
that each sack was containing dodachura and that the quantity of
recovered contraband was 301 Kgs. He places reliance in the case
of Netram v State of Rajasthan, reported in 2014 (1) Cr.L.R.
(Raj.) 163. Learned counsel also contends that the alleged
recovery of contraband was made on 05.03.2020 whereas
samples were deposited in FSL on 17.03.2020 which is also in
violation of the 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.
5. He also contends 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. He argues 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. In support of this contention, learned counsel
places reliance upon the judgments 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.
6. He also submits that the petitioner is behind the bars since
05.03.2020 and nearly three years and nine months have been
passed since his date of arrest but still four witnesses out of total
15 cited witnesses have been examined at trial. The petitioner has
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no criminal antecedents. He thus, prays that the instant bail
application may be accepted and the petitioner may be released
on bail.
7. Per contra, learned Public Prosecutor vehemently opposed
the bail application on the ground that recovered contraband
comes within the definition of commercial quantity and the
petitioner has been apprehended at the spot and thus, considering
the embargo contained in Section 37 of the NDPS Act, bail should
not be granted.
8. I have considered the arguments advanced by learned
counsel for the petitioner as well as learned Public Prosecutor and
perused the material available on record.
9. As per the FIR, there were total 15 sacks found in the truck.
The substance which were kept in those sacks, were got collected
on a plastic cloth (Tirpal) and thereafter, the same was weighed
on electronic weighing machine. After weighing the contraband,
samples were drawn from the mixture. This clearly shows that
sample from each sack was not drawn and samples were drawn
after mixing the entire substance of the sacks. It was imperative
for the seizure officer to draw samples from each sack as per
Standing Order No.1/89. In identical fact cases, benefit of bail has
been granted by coordinate benches of this Court. The petitioner
is in custody since 05.03.2020 and thus, he has suffered
incarceration of nearly three years and nine months till date and
till date, only four witnesses have been examined.
[2023:RJ-JP:39276] (5 of 6) [CRLMB-13535/2023]
10. Section 37 of the NDPS Act does 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.
11. Considering the overall facts and circumstances of the case
especially the fact that the petitioner is in custody since
05.03.2020; he has no criminal antecedents and as per the
material available on record, there is non-compliance of provisions
of Sub-Section 2 of Section 52A NDPS Act as also the fact that
separate sample was not drawn from each sack but samples were
collected after mixing the entire substance, but without
commenting anything on the merits/demerits of the case, I deem
it just and proper to accept the instant bail application.
12. This bail application is accordingly, allowed and it is directed
that accused-petitioner Ratan Singh S/o Shri Narwar Singh @
Narvel Singh, who has been in custody in connection with FIR
No.22/2020 PS Mishroli, District Jhalawar shall be released on bail
provided he furnishes a personal bond in the sum of Rs.1,00,000/-
(Rupees One Lac Only) together with two sureties in the sum of
Rs.50,000/- (Rupees Fifty Thousand Only) each to the satisfaction
[2023:RJ-JP:39276] (6 of 6) [CRLMB-13535/2023]
of the learned Trial Court with the stipulation that he 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.
13. However, it is made clear that the petitioner shall not
involve in similar offence(s) during currency of bail granted by this
Court. The petitioner is further directed to mark his presence in
the concerned police station once in every two months, till trial is
concluded. If breach of any of these conditions is reported or
come to the notice of the Court, the same shall alone be a reason
for the trial court to cancel the bail granted to him by this Court.
(ANIL KUMAR UPMAN),J
Sudhir Asopa/16
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