Rajkamal S/O Omprakash vs State Of Rajasthan ...
2023 Latest Caselaw 4794 Raj/2

[2023:RJ-JP:24403]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

   S.B. Criminal Miscellaneous II Bail Application No. 7081/2023

Rajkamal S/o Omprakash, Aged About 28 Years, Resident Of
Kalana,     Police   Station     Bhadra,        Dist.     Hanumangarh(      Raj.)
(Present Petitioner Is In Sub Jail Chhabra)
                                                                    ----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

13/09/2023

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 01.07.2020 in connection with FIR No.173/2020 registered

at Police Station Atru, District Baran for offences under Sections

8/15 & 8/29 of the NDPS Act.

After completion of investigation, chargesheet has been filed

before the learned court below and thus, the accused petitioner is

facing trial in Sessions Case No.94/2020 before the court of

learned Special Judge, NDPS Act Cases, Chhabra, Baran where the

trial is at the stage of recording prosecution evidence.

Learned counsel for the petitioner submits that the petitioner

has falsely been implicated in this case. He is in custody since

01.07.2020 and till date, he has suffered incarceration of nearly

three years and three months. He submits that period of custody

[2023:RJ-JP:24403] (2 of 5) [CRLMB-7081/2023]

is always relevant consideration for grant of bail. He further draws

attention of this Court to the fact that till date, only one witness

has been examined so far out of 17 cited witnesses and thus, the

trial will take long time in its conclusion. He submits that the

petitioner has no criminal antecedents under the NDPS Act.

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. 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 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.

He also submits that in the present case, samples were

drawn in violation of Standing Order No.1/89 issued by the NCB,

New Delhi as the Seizure Officer was required to take separate

sample from each bag. Counsel further submits that the procedure

of sampling has to be done in accordance with the directions given

by the Apex Court in the case of Gaunter Edwin Kircher vs

State of Goa, Secretariat Panaji, Goa (AIR 1993 SC 1456)

decided on 16.03.1993 in which it was clarified that sample has

to be taken from each bag. As separate weight of all the bags

were not known and sample from each bag was not drawn for

testing, it cannot be said with utmost certainty that each packet

was containing opium dodachura and that the quantity of

recovered contraband was 183.3 Kgs. Learned counsel for the

[2023:RJ-JP:24403] (3 of 5) [CRLMB-7081/2023]

petitioners relied upon the order passed by Coordinate Bench of

this Court in Netram v State of Rajasthan (2014 (1) Cr.L.R.

(Raj.) 163. He has also place reliance upon the following

judgments passed by Hon'ble Apex Court as well as of this Court

in which period of incarceration has been considered relevant for

grant of bail:-

1. Abdul Majeed Lone Vs. Union Territory of Jammu and Kashmir (Special Leave to Appeal (Crl.) No.3961/2022

2. Amit Singh Moni Vs. State of Himachal Pradesh : Crimial Appeal No.668/2020

3. Tapan Das vs. UOI (Special Leave to Appeal (Criminal) No.5617/2021

4. Ghanshyam Sharma vs. State of Rajasthan (Special Leave to Appeal (Criminal) No.5397/2019

5. Nadeem vs State of UP (Special Leave to Appeal (Criminal) No.1524/2022

6. Suresh Kumar vs State of Rajasthan (S.B. Criminal Misc. 3rd Bail Application No.16118/2022, decided on 04.01.2023)

7. Govind vs State of Rajasthan (S.B. Criminal Misc. 2nd Bail

Application No.426/2023, decided on 17.02.2023)

He submits that in all these cases, bail was granted only on

the ground of period of incarceration. He also relied upon the

order passed by Hon'ble Apex Court in the case of Raju Ram vs

State of Bihar : (2023) 1 Supreme 670 wherein it has been held

that on the basis of period of incarceration, bail can be granted by

relaxing the provision of Section 37 of the NDPS Act.

[2023:RJ-JP:24403] (4 of 5) [CRLMB-7081/2023]

Per contra, learned Public Prosecutor opposed the bail

application and submits that contraband opium dodachura

weighing 183.3 Kgs. was recovered from the vehicle, being driven

by the petitioner, which is commercial quantity and considering

the rigour of Section 37 of the NDPS Act, bail should not be

granted.

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.

As per record, the petitioner is in custody since 01.07.2020

and thus, he has suffered incarceration of nearly 3 years and 3

months till date. It also appears from the record that only one

witness has been examined so far and the trial will take long time

in its conclusion and thus, the fundamental right of the petitioner

of speedy trial is also being violated. The Hon'ble Apex Court has

granted bail to different accused persons by considering the period

of incarceration of about two years or more.

Considering the overall facts and circumstances of the case

especially the fact that the petitioner is in custody since

01.07.2020, only one witness has been examined out of total 17

cited witnesses, in similar fact situation, benefit of bail has been

extended to the persons by the Hon'ble Apex Court as well as by

this Court who have suffered incarceration of 2 years or more so

also as per the FIR, it appears that the samples were not drawn as

per the directions given by Hon'ble Apex Court in the case of

[2023:RJ-JP:24403] (5 of 5) [CRLMB-7081/2023]

Gaunter Edwin Kircher vs State of Goa, Secretariat Panaji,

Goa (supra) and 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.

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

accused petitioner Rajkamal S/o Shri Omprakash, arrested in

connection with FIR No.173/2020 PS Atru, District Baran 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

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.

It is made clear that the petitioner 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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