Rampalsingh vs State Of Rajasthan
2023 Latest Caselaw 8071 Raj

[2023:RJ-JD:32782]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous IInd Bail Application No. 11060/2023

Rampalsingh S/o Narsinghram Vishnoi, Aged About 29 Years, R/o Bandda, P.s.bhopalgarh, Dist. Jodhpur (Raj) (At Present Lodged In Dist. Jail, Bhilwara)

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

----Respondent

For Petitioner(s) : Mr. Sandeep Bishnoi For Respondent(s) : Mr. Arun Kumar PP.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 04/10/2023 Pronounced on 06/10/2023

1. This criminal misc. second bail application under Section 439

Cr.P.C. has been preferred claiming the following relief:

"It is therefore, most humbly and respectfully prayed that the Criminal Misc. IInd Bail Petition may kindly be allowed and the Petitioner may kindly be ordered to be released on Bail mentioned Case in F.I.R. No.523/2021, Police Station - Pratapnagar, District Bhilwara (Rajasthan).

2. The petitioner has been arrested in connection with FIR

No.583/2021 registered at Police Station Pratapnagar, District

Bhilwara for the offence under Section 8/15 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 (in short, 'NDPS Act').

3. Brief facts of the case, as placed before this Court by learned

counsel for the petitioner, are that on 13.10.2020, the concerned

police authority received an information that a vehicle (pick up)

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bearing registration No. RJ 06 GA 8229 was standing at Transport

Nagar; upon receipt of the information the petitioner was found

sitting in the said vehicle; whereafter, the vehicle was searched,

and during course whereof, a contraband Doda Post (poppy straw)

weighing 164.94 kgs was recovered. Thereafter, the

aforementioned FIR was registered and the present petitioner was

arrested. Subsequently, the concerned police authority filed a

charge-sheet against the petitioner under Section 8/15 NDPS Act

and Sections 468 and 471 of the Indian Penal Code, 1860 (IPC).

4. The first bail application (S.B. Criminal Misc. Bail Applicaton

No.8046/2022) of the petitioner was dismissed, as not pressed, by

this Court vide order dated 09.01.2023, with liberty to the

petitioner to file fresh bail application after recording of the

statement of seizure officer/investigating officer.

5. Learned counsel for the petitioner submitted that in the

statement of the Seizure Officer (PW-2) it was clearly stated that

the petitioner was arrested from a place located at a distance of

40-50 metres from the spot in question; the vehicle in question

was a stolen vehicle. He further submitted that there is no

evidence on record, which could show that the vehicle in question

was stolen by the present petitioner.

5.1. Learned counsel also submitted that the concerned police

authority did not produce any independent witness in support of

the search and seizure in question. It was further submitted that

the contraband and the sample were tampered, because as per

the note, the control samples did not have any impression of the

re-seal of the Malkhana.

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5.2. Learned counsel also submitted that the sample of the

contraband is necessary to be sent within 72 hours of the

recovery, as per the standing order, but the concerned police

authority clearly violated such order.

5.3. Learned counsel further submitted that the samples of the

contraband in question were not collected in the presence of a

Magistrate, and also, the Seizure Officer did not write any

application to the Magistrate, as per the provisions of the NDPS

Act. Thus, as per learned counsel, a procedural lapse was

committed during the search and seizure in question by the

concerned police authority, which is against the mandatory

provisions of the NDPS Act.

5.4. In support of such submissions, learned counsel relied upon

the following orders passed by Coordinate Benches of this Hon'ble

Court in:-

(a) Bhika Ram Vs. State of Rajasthan (S.B. Criminal Misc. Bail

Application No. 7194/2023, decided on 21.09.2023);

(b) Mohan Lal @ Mahendrapal Vs. State of Rajasthan (S.B.

Criminal Misc. Bail Application No. 11940/2023, and other

connected matter decided on 22.09.2023);

(c) Ramchandra Vs. State of Rajasthan (S.B. Criminal Misc. Bail

Application No. 9454/2023, decided on 27.09.2023);

5.5. He further relied upon the following judgments:

(a) Union of India Vs Mohanlal & Anr. (Criminal Appeal No. 652 of

2012, decided on 28.01.2016) by Hon'ble Apex Court;

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(b) Santosh Pandurang Parte Vs. Amar Bahadur Maurya & Anr

(Bail Application No. 4125 of 2021, decided on 19.07.2023)

passed by Hon'ble High Court of Bombay;

(c) Kashif Vs Narcotics Control Bureau (Bail Appln. 253/2023,

decided on 18.05.2023) passed by Hon'ble High Court of Delhi.

6. On the other hand, learned Public Prosecutor opposed the

bail application, while submitting that the contraband in question,

as recovered in the present case, is quite more than the

commercial quantity, and thus, the provisions of Section 37 of the

NDPS Act are clearly applicable in the present case.

6.1. It was further submitted that in the statement of the seizure

officer (PW-2), there is note of the learned Trial Court wherein it

was stated that all samples of the contraband were properly

sealed, and that the vehicle in question is a stolen vehicle and the

concerned police authority also filed a charge sheet against the

petitioner for the said offence.

6.2. It was further submitted that there is nothing on the record

which could show any violation of the procedure as prescribed

under the NDPS Act, and that, the concerned police authority has

duly complied with the mandatory provisions of the NDPS Act.

7. Heard learned counsel for the parties as well as perused the

record of the case along with orders/judgments cited at the Bar.

8. This Court observes that the petitioner was arrested in

connection with the offence under Section 8/15 NDPS Act and the

contraband Doda Post (poppy straw) weighing 164.94 kgs. was

recovered in the present case. Thereafter, the concerned police

authority found that the vehicle in question was a stolen vehicle,

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and thereafter, the charge-sheet was filed against the petitioner

under Section 8/15 NDPS Act and Sections 468 and 471 IPC.

9. This Court further observes that in the statement of the

seizure officer (PW-2), there is note of the learned Trial Court

wherein it was stated that all the samples of the contraband in

question were properly sealed and it is clear that all the samples

are seal-able as per the note.

10. This Court also observes that the contraband in question was

recovered from the possession of the present petitioner and there

is no material in support of the petitioner's case, so as to entitle

him for grant of bail. This Court further observes that after

dismissal of the first bail application of the petitioner, the

statements of the Investigation Officer and Seizure Officer, so

recorded, do not indicate anything, which could persuade this

Court to grant bail to the present petitioner.

11. This Court further observes that at this stage, it appears that

the recovery of the contraband in question was made from the

present petitioner by the concerned police authority, after

following the due procedure as prescribed under the NDPS Act.

12. This Court also observes that learned counsel for the

petitioner could not satisfy this Court, as to how, in the present

factual matrix, as set out hereinabove, the orders/judgments cited

at the Bar on behalf the petitioner are of any assistance to his

case.

13. Thus, looking into the nature of the offence in question and

having regard to the overall facts and circumstances of the case,

as also the fact that the contraband in question recovered from

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the petitioner is much beyond the commercial quantity, and also

looking into the stage of the case against the present petitioner

before the learned Trial Court, this Court is not inclined to grant

bail to the present petitioner at this stage.

14. Consequently, the present second bail application is

dismissed. It is however, made clear that the observations, if

any, made in this order shall not affect the pending trial of the

case against the petitioner before the learned Trial Court, on

merits.

(DR.PUSHPENDRA SINGH BHATI), J.

SKant/-

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