Mohammed Shakib @ Shakir @ Shoyab vs State Of Rajasthan ...
2023 Latest Caselaw 2068 Raj

[2023/RJJD/006205]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous 2nd Bail Application No. 2185/2023

Mohammed Shakib @ Shakir @ Shoyab S/o Firozuddin Muslim, Aged About 42 Years, H.no. 1605, Suiwalan, Sakkewali Lane, Turakman Gate, Chandani Mahal Police Station, Delhi, At Present R/o Pahadeshwar Mahadev Colony, Kabir Nagar, Soorsagar Police Station, Jodhpur, Dist. Jodhpur Metro. (Lodged In Dist. Jail, Chittorgarh).

----Petitioner Versus State Of Rajasthan, Through Pp

----Respondent

For Petitioner(s) : Mrs. Yusra, wife of the petitioner, present in person.

For Respondent(s)         :     Mr. A.R. Choudhary, PP



               HON'BLE MR. JUSTICE FARJAND ALI

                                     Order

02/03/2023

Lawyers are abstaining from appearing before the court.

The instant bail application has been filed by the petitioner

Mohammed Shakib @ Shakir @ Shoyab S/o Firozuddin Muslim

under Section 439 Cr.P.C against the order impugned passed by

learned court below in connection with FIR No.51/2017, registered

at Police Station Rashmi, District Chittorgarh, for the offences

under Sections 8/15 and 8/25 of NDPS Act.

Briefly stated, the facts of the instant case are that when the

accused saw the checkpoint, he left the car and fled away. The car

was found by the police at the time of 'nakabandi' near Aarni bus

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stand, Rashmi on 16.03.2017 at about 12:00 A.M. Upon suspicion,

the police officers searched the vehicle and during search, total

eight bags of poppy husk were found in the car containing a total

of 141.700 kilograms of Poppy husk which was seized by the

police and the seizing officer took 500 grams of poppy husk from

each bag for sampling respectively; all the samples of 500 grams

each collected from separate bags were mixed together in a single

bag and thereafter, two samples of 500 grams each were taken

from the aforesaid admixture of four kilograms.

The wife of the petitioner is present in person before this

court and she submits that a false case has been foisted against

the petitioner and the mandatory provisions of NDPS Act have not

been complied with, thus, the complete recovery, as alleged, has

been vitiated on this count alone. Neither the accused-appellant

was present on the spot nor any recovery has been effected from

him. The vehicle was lying in an abandoned condition. Samples

from each of the seven plastic bags were drawn for testing,

however, those samples were mixed together and thereafter, two

samples of 500 grams each were sent for FSL. Since samples from

each of the bags were not separately sent for testing, it cannot be

said with utmost certainty that each of the packets contained

contraband poppy husk and that the quantity of the recovered

contraband is 141.900 kilograms. He has been made accused on

the basis of statement of co-accused.

Per contra, learned Public Prosecutor opposes the bail

applications on the ground that the recovered contraband weighed

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141.900 kilograms in total and that is way above the commercial

quantity demarcated for poppy husk.

Heard. Perused the material available on record. Upon

consideration of the submissions made on behalf of the petitioner

and the law applicable in the matter, this court is of the opinion

that it cannot be ascertained beyond any measure of doubt that

the recovered contraband was above the commercial quantity as

the samples of contraband were not collected individually from the

08 jute bags for investigation. No one was found with/in the car

when the seizure was made. As per submission on behalf of

petitioner, he was made accused on the basis of statement of co-

accused.

No presumption is available that the other bags also

contained contraband. Since the doctrine of beyond reasonable

doubt is applicable in criminal matters, therefore, even the initial

duty lies upon the prosecution to show that the petitioner was

having contraband in all the bags. If samples taken from all the

bags and then the collected samples are mixed together and then

one sample is taken from the admixture, the same sample cannot

be a representative of all the other bags and it cannot be

ascertained beyond reasonable doubt that the other bags also

contained contraband on the basis of presumption.

This court has passed a detailed order in this context in S.B.

Criminal Misc. 3rd Bail Application No. 1162/2022 titled

Ramchandra v. State of Rajasthan, wherein the rules

pertaining to sample collection contained in Standing Order

[2023/RJJD/006205] (4 of 5) [CRLMB-2185/2023]

No.1/1989 dated 13.06.1989 issued by Government of India

under Section 52A of NDPS Act have been enumerated inter alia

other aspects.

The eight jute bags were weighed separately and as the

samples were wrongly collected, the quantity of the seized

contraband can be assumed to be less than commercial quantity

and the impediment as stipulated in Section 37 of the NDPS Act

will not be applicable in the present case. For instance, if the eight

jute bags were allegedly recovered from the principal and only two

jute bags were having contraband substance and rest of the six

jute bags did not have any contraband; though all maybe of same

colour, when we mix the substances of all the eight jute bags into

one or two; then definitely, the forensic result would as such test

in the affirmative for whole of the quantity when in fact,

contraband was only contained in two bags. The alleged ceased

contraband contained in each single jute bag weighed well below

commercial quantity and since it cannot be established that each

of the bags were filled with the alleged contraband, therefore, the

embargo contained under Section 37 of NDPS Act would not be

attracted.

In light of the above observations and looking to the overall

facts and circumstances of the case and the dicta contained in the

judgment passed in Ramchandra (supra), this court deems it just

and proper to enlarge the petitioner on bail.

It is to be made clear, in unambiguous terms, that the effect

of this order is limited to the justifiable disposal of the present bail

[2023/RJJD/006205] (5 of 5) [CRLMB-2185/2023]

application and shall not influence the learned trial judge in

reaching a conclusion at the culmination of the trial.

Accordingly, the 2nd bail application under Section 439

Cr.P.C. is allowed and it is ordered that the accused-petitioner

named above shall be enlarged on bail provided he furnishes a

personal bond in the sum of Rs.50,000/- with two sureties of

Rs.25,000/- 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 do so.

(FARJAND ALI),J 90-divya/-

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