Ramprasad Godara Son Of Shri Bhagu ... vs State Of Rajasthan ...
2023 Latest Caselaw 6379 Raj/2

[2023:RJ-JP:32723]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

     S.B. Criminal Misc. Second Bail Application No. 13966/2023

Ramprasad Godara Son Of Shri Bhagu Ram Godara, Aged About
28 Years, Resident Of Village Kanuta, Police Station Sujangarh
Sadar, District Churu (Raj.) ( At Present In Central Jail Ajmer)
                                                                    ----Petitioner
                                    Versus
1.       State Of Rajasthan, Through P.p.
2.       Ayub Khan, Sub Inspector Of Police, S.h.o. Police Station
         Roopangarh, District Ajmer (Raj.)
                                                                 ----Respondents

For Petitioner(s)         :     Mr. Shyam Bihari Gautam
For Respondent(s)         :     Mr. Sanjeev Mahala, PP



           HON'BLE MR. JUSTICE ANIL KUMAR UPMAN

                                     Order

02/11/2023

1. This Second bail application has been filed under Section 439

Cr.P.C. on behalf of the accused-petitioner who has been arrested

in connection with FIR No.34/2023 registered at Police Station

Roopangarh, District Ajmer for offences under Sections 8/15 &

8/20 of the NDPS Act.

2. The first bail application (No.9089/2023) was dismissed as

withdrawn by this Court vide order dated 28.07.2023 with liberty

to file fresh bail application after recording statements of the

Seizure Officer and Investigation Officer within a period of three

months. Learned counsel for the petitioner submits that the

statement of the seizure officer Ayub Khan, the then SHO PS

Roopangarh has been recorded at trial and three months have

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already been lapsed since dismissal of the first bail application and

hence, this second application for bail 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 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. Counsel places reliance upon the judgments of Hon'ble

Supreme Court 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.

4. Counsel for the petitioner has also argued that mandatory

provisions of Section 42 of the NDPS Act has also not been

followed as search was made in between sunset and sunrise but

no memo of reasons/grounds for his belief was prepared by the

seizure officer. The Seizure Officer also did not reduce in writing

and prepare any separate 'fard' for the secret information received

by him from the secret informer. Counsel for the petitioner relied

upon the following judgment of Hon'ble Supreme Court in the case

of State of Orissa vs. Laxman Jena, reported in (2009) 16 SCC

332.

5. He submits that contraband dodapost weighing 53.400kg

was allegedly recovered from the store room of the hotel of the

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petitioner is at the margin of the commercial quantity. He submits

that while measuring the weight of the contraband, the weight of

the plastic bag in which the contraband was kept, was also

included and thus, it can be presumed that the alleged contraband

is below commercial quantity. Only one witness has been

examined out of 26 cited witnesses and trial of the case will take

considerable time in its conclusion. The petitioner has no criminal

antecedents. He thus, prays that the instant application for bail

may be accepted and the petitioner may be released on bail.

6. Per contra, learned Public Prosecutor vehemently and

fervently opposes the bail application. He submits that contraband

dodapost weighing 53.400kg was recovered from the store room

of the hotel and petitioner was arrested on the spot and thus,

considering the rigour of Section 37 of the NDPS Act, bail should

not be granted.

7. I have heard and considered the submissions advanced by

counsel for the petitioner as well as learned Public Prosecutor and

perused the material available on record.

8. The process of drawing samples has not been done in the

presence and under the supervision of the Magistrate, which is in

violation of Section 52A of the NDPS Act. 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

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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.

9. Further, there is requirement of law that whenever any

search is made between sunset and sunrise, the authorized officer

is required to record his reasons/grounds for such belief but in the

present case, such reasons were not recorded and no separate

memo was prepared. I fortify my view from the ratio decided in

the case of Laxman Jena (supra).

10. Considering the overall facts and circumstances of the case

especially the fact that as per the FIR, it appears that the

mandatory provisions of Section 52A of the NPDS Act and the

guidelines laid down by the Hon'ble Supreme Court in the cases of

Union of India vs Mohanlal (supra), Mangilal vs State of Madhya

Pradesh (supra) have not been followed in the present case, the

petitioner does not have any criminal antecedents; the alleged

recovered contraband is at the margin of the commercial quantity

and chargesheet has been filed in the matter, but without making

any comments on the merits/demerits of the case, I deem it just

and proper to accept the instant bail application.

11. Thus, this second bail application is allowed and it is directed

that accused petitioner - Ramprasad Godara Son Of Shri

Bhagu Ram Godara, arrested in connection with FIR No.34/2023

registered at Police Station Roopangarh, District Ajmer shall be

released on bail provided he furnishes a personal bond in the sum

of Rs.50,000/- (Rupees Fifty Thousand only) together with two

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sureties in the sum of Rs.25,000/- (Rupees Twenty Five Thousand

only) each to the satisfaction 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.

12. However, it is made clear that the petitioner shall not

involve in similar offence(s) during pendency of bail granted by

this Court. The petitioner is further directed to mark his presence

in the concerned police station on first Monday of every month, 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 the

petitioner by this Court.

(ANIL KUMAR UPMAN),J

Nirmala

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