Vishnu Dutt Khileri vs State Of Rajasthan
2023 Latest Caselaw 8747 Raj

[2023:RJ-JD:35890]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
    S.B. Criminal Miscellaneous Bail Application No. 5756/2023

Vishnu Dutt Khileri S/o Sh. Ram Bhagat Khileri Grandson Of
Hanuman Khileri, Aged About 37 Years, R/o 3 K.p.d. Dhani Ps
Rawla Dist. Sri Ganganagar
(Lodged At Sub Jail Anoopgarh)
                                                                   ----Petitioner
                                    Versus
State Of Rajasthan, Through Pp
                                                                 ----Respondent


For Petitioner(s)          :    Mr. Devi Lal Rawla
                                Mr. Pravesh Kumar Rawla
For Respondent(s)          :    Mr. Anita Gehlot, P.P.



            HON'BLE MR. JUSTICE KULDEEP MATHUR

                                    ORDER

19/10/2023 This application for bail under Section 439 Cr.P.C. has been

filed by the petitioner who has been arrested in connection with

FIR No.136/2020 registered at Police Station Rawla, District

Sriganganagar, for offences under Sections 8/22 and 25 of the

NDPS Act.

Learned counsel for the petitioner submitted that as per

prosecution, the police on 15.07.2020 at 9:45 am, while on a

routine round of the city, having suspicion on the activities of the

petitioner, stopped him and recovered psychotropic substance

weighing 3 kg. 600 gms. from his conscious possession. Learned

counsel submitted that the entire seizure proceeding suffers from

illegalities. Drawing attention of the Court towards the challan

papers, learned counsel submitted that neither the samples were

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taken nor the seizure memo was prepared at the spot and all the

papers were prepared by the police after taking the petitioner to

the nearby police station.

Placing reliance on the judgment passed by Hon'ble the

Supreme Court in the case of Kuldeep Singh vs. State of

Punjab reported in AIR 2011 SC (Supp.) 787, learned counsel

contended that non-collection of the samples as per the procedure

laid down, at the initial stage of seizure is an incurable defect and

the entire seizure proceedings thus, comes under the shadow of

doubt.

Learned counsel further submitted that the petitioner is in

judicial custody since 15.07.2020 and till date, statements of not a

single prosecution witness out of total 15 cited prosecution

witnesses has been recorded before competent criminal court.

Learned counsel submitted that delay in trial is not attributable to

the present petitioner and to substantiate this contention,

attention of the Court was drawn towards order sheets of the

competent criminal court.

Learned counsel placed reliance on the decision of Hon'ble

the Supreme Court in the case of Mohd. Muslim @ Hussain Vs.

State (NCT of Delhi) Special Leave Petition (Criminal)

No(s).915 of 2023 and Rabi Prakash vs. State of Odisha

(Special Leave Petition(Criminal) No(s).4169/23 and prayed

that the petitioner be enlarged on bail.

Per contra, learned Public Prosecutor opposed the bail

application and submitted that huge quantity of psychotropic

substance was recovered from the conscious possession of the

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petitioner, therefore, looking to seriousness of the accusations, the

petitioner does not deserve to be enlarged on bail by this Court.

Heard learned counsel for the petitioner and learned Public

Prosecutor. Perused the material available on record.

Having considered the submissions advanced at bar and

having perused the FIR and challan papers, this Court prima facie

finds sufficient merit in the arguments advanced by learned

counsel for the petitioner that since the seizure memo was not

prepared and the samples were not taken at the spot/place of

occurrence, the seizure proceedings comes under clouds thereby

affecting the credibility of the prosecution's case. This Court also

prima facie finds that the petitioner who is aged about 37 years, is

in judicial custody since 15.07.2020 and till date, not a single

prosecution witness has been examined before competent criminal

court. This Court also prima facie finds that delay in trial is not

attributable to the present petitioner. In the prima facie opinion of

this Court, twin conditions of Section 37 of the NDPS Act are duly

satisfied. Thus, without expressing any opinion on the

merits/demerits of the case, this Court deems it a fit case to

enlarge the petitioner on bail.

Accordingly, the bail application under Section 439 Cr.P.C. is

allowed and it is ordered that the accused-petitioner- Vishnu

Dutt Khileri S/o Sh. Ram Bhagat Khileri Grandson Of

Hanuman Khileri shall be enlarged on bail in connection with FIR

No.136/2020 registered at Police Station Rawla, District

Sriganganagar, provided he furnishes a personal bond in the sum

of Rs.1,00,000/- with two sureties of Rs.50,000/- each to the

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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 so.

It is however, made clear that findings recorded/observations

made above are for limited purposes of adjudication of bail

application. The trial court shall not get prejudiced by the same.

(KULDEEP MATHUR),J /tarun goyal/-

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