Rajasthan High Court
Bherulal Meena S/O Udayram vs State Of Rajasthan ... on 14 September, 2023
Bench: Anil Kumar Upman
[2023:RJ-JP:22994]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Bail Application No. 10340/2023
Bherulal Meena S/o Udayram, Aged About 27 Years, R/o Proliya,
Police Station Bhanpura, District Mandsaur (M.p.) (Presently
Confined In Sub Jail Ramganjmandi, Kota)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Avatar Singh
Mr. P.L. Saini
For Respondent(s) : Mr. Chandragupt Chopra, PP
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
Order
14/09/2023
1. The instant bail application has been filed under Section 439
of Cr.P.C. on behalf of the petitioner, who has been arrested in
connection with FIR No.31/2023 registered at Police Station
Kanwas, District Kota Rural for the offences under Section 8/18 of
NDPS Act.
3. Learned counsel for the petitioner submits that the petitioner
has falsely been implicated in this case. He further submits that
mandatory provisions of Sections 42 & 52-A of the NDPS Act have
not been followed in the instant case. He contends that search
was made in between sunset and sunrise but no memo of
reasons/grounds for his belief was prepared by the seizure officer.
It is also contended by counsel for the petitioner that samples
were not drawn in presence of magistrate and as such, the entire
recovery proceedings are vitiated. He places reliance upon the
[2023:RJ-JP:22994] (2 of 3) [CRLMB-10340/2023]
following judgments:-
(i) State of Orissa vs Laxman Jena,
reported in 2009 Vol.16 SCC 332.
(ii) Union of India vs Mohanlal (2016) 3
SCC 379.
4. He submits that the charge sheet has been filed before the
learned court below and the petitioner is in custody since date of
arrest and trial of the case will take considerable time. He thus,
prays that the bail application may be accepted and the petitioner
may be released on bail.
5. Per contra, learned Public Prosecutor vehemently opposed
the bail application.
6. I have considered the arguments advanced by learned
counsel for the petitioner as well as learned Public Prosecutor and
perused the material available on record.
7. There is requirement of law that whenever any search is
made between sunset and sunrise, the authorized officer is
required to record his reasons/grounds for such belief but in
present case, such reasons were not recorded and no separate
memo was prepared. I fortify my view from the ratio decided in
the case of Laxman Jena (supra).
8. Having regard to the facts and circumstances of the case and
considering the arguments advanced by learned counsel for the
parties especially the fact samples have not been drawn in
presence of magistrate, which prima facie indicates a non-
compliance of the mandatory provisions of Section 52-A of the
[2023:RJ-JP:22994] (3 of 3) [CRLMB-10340/2023]
NDPS Act, that the mandatory provisions regarding collection of
sample prescribed in the standing order No.1/1989 issued by
Central Government as well as the guidelines laid down by the
Hon'ble Supreme Court in Mohan Lal (supra), I am of the view
that the petitioner is entitled to be released on bail.
9. This bail application is accordingly allowed and it is directed
that accused petitioner- Bherulal Meena S/o Udayram 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.
(ANIL KUMAR UPMAN),J
56-Nirmala
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