Smt. Vishnu Kanwar W/O Shri ... vs State Of Rajasthan ...
2023 Latest Caselaw 6026 Raj/2

[2023:RJ-JP:29690]

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

     S.B. Criminal Miscellaneous II Bail Application No. 12423/2023

Smt. Vishnu Kanwar W/o Shri Shrawan Singh, Aged About 32
Years, R/o Rundal, Police Station Chandwaji, District Jaipur (At
Present Accused In Central Jail, Jaipur)
                                                                    ----Petitioner
                                     Versus
State of Rajasthan, through PP
                                                                  ----Respondent

For Petitioner(s) : Mr. T.C. Sharma for Mr. S.S. Hora For Respondent(s) : Mr. Sher Singh, PP

HON'BLE MR. JUSTICE ANIL KUMAR UPMAN

Order

16/10/2023

1. The instant second application for bail under Section 439

Cr.P.C. has been filed on behalf of the petitioner, who is in custody

since 12.02.2022 in connection with FIR No.32/2022 registered at

Police Station Chandwaji, District Jaipur (Rural) for offence under

Section 8/21 of the NDPS Act.

2. Learned counsel for the petitioner submits that the first bail

application (No.6099/2022) was dismissed as withdrawn by this

Court vide order dated 04.07.2023 with liberty to file fresh

application for bail after recording statement of the seizure officer.

He submits that the statement of the seizure officer has been

recorded at trial and as such, this second application for bail has

been filed. He submits that the petitioner has falsely been

[2023:RJ-JP:29690] (2 of 4) [CRLMB-12423/2023]

implicated in this case. She has nothing to do with the alleged

recovery.

3. Counsel for the petitioner 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. 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. He placed reliance on the

following judgments:- (1) Union of India vs Mohanlal & Anr :

(2016) 3 SCC 3749 and (2) Mangilal vs State of Madhya Pradesh:

2023 SCC online SC 862. While referring to the FSL report dated

05.08.2022, learned counsel contends that on microchemical

analysis, presence of diacetylmorphine (Heroin) could not be

detected in the samples sent to FSL. As per the said report, the

sample was found to contain Alprazolam, Paracetamol and

Caffeine. Counsel submits that the petitioner is a lady and she has

no criminal antecedents whereas trial will take long time in its

conclusion.

4. Per contra, learned Public Prosecutor opposes the bail

application and submits that 5.300 Kgs contraband smack have

has been recovered from the house of the petitioner and she has

been arrested from the place of recovery. He submits that

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

not be granted.

[2023:RJ-JP:29690] (3 of 4) [CRLMB-12423/2023]

5. 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.

6. 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.

7. Considering the overall facts and circumstances of the case

especially the fact that the petitioner is a female and she is in

custody since 12.02.2022 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 samples were drawn in violation

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

case of Union of India vs Mohanlal reported in (2016) 3 SCC 379,

without commenting anything on the merits/demerits of the case,

I deem it just and proper to accept the instant bail application.

8. Thus, the bail application is allowed and it is directed that

accused petitioner Smt Vishnu Kanwar W/o Shri Shrawan Singh,

arrested in connection with FIR No.32/2022 PS Chandwaji, District

[2023:RJ-JP:29690] (4 of 4) [CRLMB-12423/2023]

Jaipur (Rural) shall be released on bail provided she furnishes a

personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand

only) together with two 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 she 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.

9. 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 her 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 him by this Court.

(ANIL KUMAR UPMAN),J

Sudhir Asopa/16

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