Rajasthan High Court
Babu Khan S/O Bahdur Khan vs State Of Rajasthan on 11 September, 2023
Bench: Anil Kumar Upman
[2023:RJ-JP:23244]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Bail Application No. 8027/2023
1. Rahis Khan S/o Ishaq Khan, Aged About 50 Years,
Residence Of Kilona, Police Station Nalkheda, District
Aagr (M.p.) (Petitioner In Sub Jail Bhawanimandi)
2. Farman Khan S/o Rakhman Khan, Aged About 40 Years,
Residence Of Kilona, Police Station Nalkheda, District
Aagr (M.p.) (Petitioner In Sub Jail Bhawanimandi)
----Petitioners
Versus
State Of Rajasthan, Through P.P.
----Respondent
Connected With
S.B. Criminal Miscellaneous Bail Application No. 8028/2023
Babu Khan S/o Bahdur Khan, Aged About 60 Years, Residence Of
Kilona, Police Station Nalkheda, District Aagr (M.p.) (Petitioner
In Sub Jail Bhawanimandi)
----Petitioner
Versus
State Of Rajasthan, Through PP.
----Respondent
For Petitioner(s) : Mr. Ali Mohd Khan
For Respondent(s) : Mr. Chandragupt Chopra, PP
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
Order
14/09/2023
1. These bail applications have been filed under Section 439
Cr.P.C. on behalf of the accused-petitioners who have been in
custody since 26.05.2022 in connection with FIR No.247/2022
registered at Police Station Bhawanimandi, District Jhalawar for
offences under Sections 8/20 and 8/29 of the NDPS Act. After
[2023:RJ-JP:23244] (2 of 4) [CRLMB-8027/2023]
investigation, the police has filed chargesheet in this matter before
the learned court below.
2. It is contended by learned counsel for the petitioners that
the accused petitioners have falsely been implicated in this case.
He contends that the petitioners have nothing to do with the
alleged recovery of contraband Ganja. Counsel submits that as per
prosecution case, contraband ganja weighing 90 Kgs. was
recovered from the car No. MP 09 CN 5149 and the petitioners
were there in the car. It is contended by learned counsel for the
petitioners that the work of drawing samples 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. He further argued that inventory report of this case has been
prepared after an inordinate delay for which, no explanation has
been given by the investigating agency. He also contends that the
samples drawn from the alleged recovered were deposited in the
FSL on 30.05.2022 for analysis purpose after 72 hours of the
sampling, which is in violation of the mandatory provisions
provided under the NDPS Act. He places reliance upon the
judgments 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. He submits that after investigation, police has filed
chargesheet in the matter and trial will take considerable time in
[2023:RJ-JP:23244] (3 of 4) [CRLMB-8027/2023]
its conclusion. The petitioners have no similar criminal
antecedents. He thus, prays that the instant applications for bail
may be accepted and the petitioners may be released on bail.
5. Per contra, learned Public Prosecutor vehemently and
fervently opposes the bail application. He submits that contraband
ganja weighing 90 Kgs. has been recovered from the car of the
petitioners. He contends that looking to the quantity of the
recovered contraband bail should not be granted.
6. I have heard and considered the submissions advanced by
counsel for the petitioners as well as learned Public Prosecutor and
perusal the material available on record.
7. 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. Further, apart from
inordinate delay in preparing the inventory, the samples drawn
from the alleged recovered were deposited in the FSL for analysis
purpose on 30.05.2022 after 72 hours of the sampling, which is in
violation of the mandatory provisions provided under the NDPS
Act. The petitioners are in custody since 26.06.2022 and trial will
take long time in its conclusion.
8. Thus, considering the overall facts and circumstances of the
case especially the fact that after completion of trial, chargesheet
has been filed, the period of custody of the petitioners, absence of
criminal antecedents of the petitioners under the NDPS Act, so
also the fact that 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 have not been followed in the present case, but
[2023:RJ-JP:23244] (4 of 4) [CRLMB-8027/2023]
without making any comments on the merits/demerits of the case,
I deem it just and proper to accept the instant bail applications
9. Thus, the bail applications are allowed and it is directed that
accused petitioners (1) Rahis Khan S/o Shri Ishaq Khan, (2)
Farman Khan S/o Shri Rakhman Khan and (3) Babu Khan S/o Shri
Bahdur Khan arrested in connection with FIR No.247/2022 PS
Bhawanimandi, shall be released on bail provided each of them
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 they
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.
10. It is made clear that the petitioners shall not involve in any
other similar offence during currency of the bail. In case, breach
of this condition is reported or come to the notice of the Court, the
trial court can cancel the bail granted to him by this Court.
(ANIL KUMAR UPMAN),J
Sudhir Asopa/16
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