Rajasthan High Court
Banna Son Of Bhura vs State Of Rajasthan (2024:Rj-Jp:18176) on 4 April, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JP:18176]
`HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous 2nd Bail Application No. 13070/2022
Banna Son Of Bhura, Aged About 63 Years, Resident Of 156
Dhani Kudiyawali Tan Simarla Jagir, Tehsil Srimadhopur, Distt.
Sikar ( At Present Accused Is Confined In Sub Jail Neem Ka
Thana)
----Petitioner
Versus
State Of Rajasthan, Through P.p.
----Respondent
For Petitioner(s) : Mr. Manish Gupta
Ms. Sweta Soni
For Respondent(s) : Mr. Imran Khan, PP
HON'BLE MR. JUSTICE FARJAND ALI
(THROUGH VIDEO CONFERENCING)
Order
04/04/2024
1. The jurisdiction of this court has been invoked by way of
filing the second application under Section 439 CrPC at the
instance of accused-petitioner. The requisite details of the matter
are tabulated herein below:
S.No. Particulars of the Case
2. Concerned Police Station Ringas
3. District Sikar
4. Offences alleged in the FIR Section 8/15 of the NDPS
Act
5. Offences added, if any -
6. Date of passing of impugned 25.01.2022
order
2. The first bail application being S.B. Criminal Misc. Bail
Application No.1832/2022 came to be dismissed as withdrawn by
[2024:RJ-JP:18176] (2 of 7) [CRLMB-13070/2022]
this Court vide order dated 05.07.2022 and a liberty was afforded
to the petitioner to renew the prayer for bail after the statement
of Seizing Officer is recorded. Now, the statement of Seizing
Officer has been recorded. Hence, the instant bail application.
3. Briefly stated the facts of the case are that on 16.01.2022,
Sub-Inspector Madan Lal recovered poppy husk weighing 142 Kg
700 gms from the possession of the petitioner whereafter the
accused was taken into custody. The Seizing Officer took samples
at the spot and marked them as 'S' 'S-1' and 'S-2' from the
recovered contraband and the same were sent to the FSL for
chemical examination. After usual investigation, a charge sheet
under Section 8/15 of the NDPS Act has been filed.
4. It is contended on behalf of the accused-petitioner that no
case for the alleged offences is made out against him and his
incarceration is not warranted. There are no factors at play in the
case at hand that may work against grant of bail to the accused-
petitioner and he has been made an accused based on conjectures
and surmises. He further submits that the accused was taken into
custody on 16.01.2022 and since then he is behind the bars. Now,
more than two years have lapsed but the trial is not going to be
culminated and still it seems that a further long time shall be
taken in conclusion of the same, thus, he may be enlarged on bail.
5. Contrary to the submissions of learned counsel for the
petitioner, learned Public Prosecutor opposes the bail application
and submits that the present case is not fit for enlargement of
accused on bail.
[2024:RJ-JP:18176] (3 of 7) [CRLMB-13070/2022]
6. Have heard and considered the submissions made by both
the parties and have perused the challan papers and the other
material available on record.
7. Perusal of the material available on record revealing that on
16.01.2022, Sub Inspector Madan Lal recovered poppy husk
weighing 142.700 Kg the possession of the petitioner whereafter
samples were taken by him at the spot and marked as 'S', 'S-1' &
'S-2' and the samples were sent to the FSL for detection of
morphine and its derivatives.
8. It is an admitted situation that the samples which were
taken by the Seizing Officer from the spot on 16.01.2022 were
sent to the FSL for chemical examination, which were not taken in
the presence of the Magistrate. Apparently, the guidelines issued
by the Government vide Standings Order Nos.1/1988 & 1/1989
as well as the mandate of law contained under Section 52-A of
the NDPS Act have not been complied with. Admittedly, no
samples were taken in the presence of Magistrate whereas the
samples taken at the spot were sent to the FSL.
9. In this view of the matter it can be said that the samples
sent to the FSL and the report of the FSL in this regard is nothing
but is a waste paper as propounded in a judgment titled as
Mohammed Khalid and another Vs. The State of Telangana
passed by Hon'ble the Supreme Court in Criminal Appeal No(S).
1610 Of 2023 dated 01.03.2024, it was held that since no
proceedings were undertaken for preparing of inventory and
drawings of samples as per Section 52-A of NDPS Act, thus, the
FSL was considered to be waste and was not considered worthy of
[2024:RJ-JP:18176] (4 of 7) [CRLMB-13070/2022]
being read in evidence on the basis of this inter alia other
aspects, Hon'ble the Apex Court acquitted the appellants of all
charges. The relevant paragraph of the above judgment is
reproduced as under:-
"22. Admittedly, no proceedings under Section 52A of the
NDPS Act were undertaken by the Investigating Officer PW-5
for preparing an inventory and obtaining samples in presence
of the jurisdictional Magistrate. In this view of the matter, the
FSL report(Exhibit P11) is nothing but a waste paper and
cannot be read in evidence."
10. In this instant matter too, the alleged contraband was
seized on 16.01.2022 and Section 52-A of NDPS Act has not been
complied with after the seizure of the contraband and no samples
drawn in the presence of magistrate were sent for scientific
investigation, thus, the requisite compliance of Section 52-A of
NDPS Act has not been made.
11. Moving on to the impediments contained under Section 37
of the NDPS Act, it is considered relevant to refer to the recent
ruling passed by Hon'ble the Supreme Court in Mohd Muslim @
Hussain V. State (NCT OF DELHI) Vs. State (NCT of Delhi)
passed by Hon'ble the Supreme Court in Special Leave Petition
(Crl.) No.915 of 2023 vide order dated 28.03.2023, wherein while
discussing the parameters of Section 37 of the NDPS Act, it was
held that the provision cannot be construed in a manner that
would render the grant of bail impossible. The accused-appellant
in the aforementioned case was directed to be enlarged on bail
looking to the long period of incarceration. The paragraphs of
Mohd. Muslim @ Hussain (supra) relevant to the present
matter are reproduced below:
[2024:RJ-JP:18176] (5 of 7) [CRLMB-13070/2022]
"18. The conditions which courts have to be cognizant of are
that there are reasonable grounds for believing that the
accused is "not guilty of such offence" and that he is not likely
to commit any offence while on bail. What is meant by "not
guilty" when all the evidence is not before the court? It can
only be a prima facie determination. That places the court's
discretion within a very narrow margin. Given the mandate of
the general law on bails (Sections 436, 1 Special Leave
Petition (CRL.) NO(S). 915 of 2023, decided on 28.03.2023.
437 and 439, CrPC) which classify offences based on their
gravity, and instruct that certain serious crimes have to be
dealt with differently while considering bail applications, the
additional condition that the court should be satisfied that the
accused (who is in law presumed to be innocent) is not guilty,
has to be interpreted reasonably. Further the classification of
offences under Special Acts (NDPS Act, etc.), which apply over
and above the ordinary bail conditions required to be assessed
by courts, require that the court records its satisfaction that the
accused might not be guilty of the offence and that upon
release, they are not likely to commit any offence. These two
conditions have the effect of overshadowing other conditions.
In cases where bail is sought, the court assesses the material
on record such as the nature of the offence, likelihood of the
accused co-operating with the investigation, not fleeing from
justice: even in serious offences like murder, kidnapping, rape,
etc. On the other hand, the court in these cases under such
special Acts, have to address itself principally on two facts:
likely guilt of the accused and the likelihood of them not
committing any offence upon release. This court has generally
upheld such conditions on the ground that liberty of such
citizens have to - in cases when accused of offences enacted
under special laws - be balanced against the public interest.
19. A plain and literal interpretation of the conditions under
Section 37 (i.e., that Court should be satisfied that the accused
is not guilty and would not commit any offence) would
effectively exclude grant of bail altogether, resulting in punitive
detention and unsanctioned preventive detention as well.
Therefore, the only manner in which such special conditions as
[2024:RJ-JP:18176] (6 of 7) [CRLMB-13070/2022]
enacted under Section 37 can be considered within
constitutional parameters is where the court is reasonably
satisfied on a prima facie look at the material on record
(whenever the bail application is made) that the accused is not
guilty. Any other interpretation, would result in complete
denial of the bail to a person accused of offences such as those
enacted under Section 37 of the NDPS Act."
(Emphasis Supplied)
12. In Rabi Prakash Vs. State of Odisha passed in Special
leave to Appeal (Crl.) No.(s) 4169/2023, Hon'ble the Apex Court
has again passed an order dated 13th July, 2023 dealing this
issue and has held that the provisional liberty(bail) overrides the
prescribed impediment in the statute under Section 37 of the
NDPS Act as liberty directly hits one of the most precious
fundamental rights envisaged in the Constitution, that is, the
right to life and personal liberty contained in Article 21.
13. At the stage of hearing of a bail plea pending trial, although
this Court is not supposed to make any definite opinion or
observation with regard to the discrepancy and legal defect
appearing in the case of prosecution as the same may put a
serious dent on the State's case yet at the same time, this Court
can not shut its eye towards the non-compliance of the
mandatory provision, more than two years of incarceration
pending trial, failure of compliance with the procedure of
sampling and seizure and the serious issue of competence of
seizure officer. In the case of Mohd. Muslim @ Hussain (Supra)
it has been propounded that at the stage of hearing a bail
application under Section 439 Cr.P.C., although it is not possible
to make a definite opinion that they are not guilty of the alleged
[2024:RJ-JP:18176] (7 of 7) [CRLMB-13070/2022]
crime but for the limited purpose for the justifiable disposal of the
bail applications, a tentative opinion can be formed that the
material brought on record is not sufficient enough to attract the
embargo contained under Section 37 of the NDPS Act. Though
specific arguments have not been conveyed but looking to the
fact that the accused is in custody, this court feels that the
accused are not supposed to establish a case in support of his
innocence rather his detention is required to be justified at the
instance of the prosecution, therefore, this court went deep into
the facts of the case and the manner in which the entire
proceedings have been undertaken. If other surrounding factors
align in consonance with the statutory stipulations, the personal
liberty of an individual can not encroached upon by keeping him
behind the bars for an indefinite period of time pending trial. In
view of the above, it is deemed suitable to grant the benefit of
bail to the petitioner.
14. Accordingly, the instant second bail application under Section
439 Cr.P.C. is allowed and it is ordered that the accused-petitioner
shall be enlarged on bail provided he furnishes a personal bond in
the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to
the 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 do so.
(FARJAND ALI),J
Mamta/40
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