Rajasthan High Court
Ganpat Ram S/O Oghad Ram vs Narcotic Control Bureau on 5 April, 2024
Author: Anil Kumar Upman
Bench: Anil Kumar Upman
[2024:RJ-JP:15977]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous II Bail Application No. 1381/2024
Ganpat Ram S/o Oghad Ram, Aged About 38 Years, R/o Village
Nimbol, Tehsil And Police Station Jaitaran, District Pali (Raj.)
(Presently Confined In Sub Jail Beawar, District Ajmer).
----Petitioner
Versus
Narcotic Control Bureau, Through Special PP
----Respondent
For Petitioner(s) : Mr. Pradeep Malik
Mr. Anirudh Singh
For Respondent(s) : Mr. Tej Prakash Sharma, Special PP
for NCB
Mr. Sanjeev Mahala, PP
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
ORDER
DATE OF PRONOUNCEMENT :- 05/04/2024
1. This is a second bail application under Section 439 Cr.P.C.
filed on behalf of the petitioner who has been in custody in
connection with FIR No.VIII(IO)/17/NCB/JZU/2022 registered on
16.07.2022 at NCB, Jodhpur for offences punishable under
Sections 8/18, 8/25 and 8/29 of the NDPS Act.
2. Learned counsel for the petitioner submits that the previous
bail application (No.6175/2023) filed on behalf of the petitioner
was dismissed as withdrawn by this Court vide order dated
19.07.2023 with liberty to renew the prayer for bail after
recording statement of the seizure officer. The testimony of
seizure officer has been recorded at trial and after recording his
evidence, the petitioner has filed this bail application.
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3. Learned counsel submits that the accused petitioner has
falsely been implicated in this case. He 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. In support of this
contention, learned counsel places reliance upon the judgments
passed in the cases of (1) Union of India vs Mohanlal & Anr :
(2016) 3 SCC 3749, (2) Mangilal vs State of Madhya
Pradesh: 2023 SCC online SC 862 and (3) Simarnjit Singh
Vs State of Punjab arising out of S.L.P. (Cr.l.) No. 1958 of
2023. Learned counsel contends that there is variation in the
weight of the samples which were drawn at time of preparation of
inventory report and when they were receiving in the FSL. The
petitioner is in custody since 16.07.2022 and trial will take long
time. He has placed 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. Raju Ram vs State of Bihar : (2023) 1 Supreme 670
2. Abdul Majeed Lone Vs. Union Territory of Jammu and
Kashmir (Special Leave to Appeal (Crl.) No.3961/2022
3. Amit Singh Moni Vs. State of Himachal Pradesh : Crimial
4. Tapan Das vs. UOI (Special Leave to Appeal (Criminal)
[2024:RJ-JP:15977] (3 of 5) [CRLMB-1381/2024]
5. Ghanshyam Sharma vs. State of Rajasthan (Special Leave to
Appeal (Criminal) No.5397/2019
6. Nadeem vs State of UP (Special Leave to Appeal (Criminal)
7. Suresh Kumar vs State of Rajasthan (S.B. Criminal Misc. 3rd
Bail Application No.16118/2022, decided on 04.01.2023)
8. Govind vs State of Rajasthan (S.B. Criminal Misc. 2nd Bail
Application No.426/2023, decided on 17.02.2023)
4. Learned counsel submits that in the case of Raju Ram
(supra), 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. The petitioner does not have any
criminal antecedents. He thus, prays that the instant bail
application may be accepted.
5. Per contra, learned Special Public Prosecutor for NCB
vehemently opposes the bail application on the ground that a
huge quantity of contraband opium has been recovered from the
petitioner which comes within the definition of commercial
quantity. Learned Special Public Prosecutor contends that the
argument of the petitioner's counsel that there is non-compliance
of Section 52A of the NDPS Act is not correct as samples were
drawn in the presence of the magistrate and thereafter, they were
sent to FSL. Besides this, he submits that initially, contraband
opium weighing 6.625 Kgs. was recovered from the possession of
the petitioner and during investigation, an additional contraband
opium weighing 1.55 Kgs. was also recovered from the house of
the petitioner. He thus submits that considering the embargo
[2024:RJ-JP:15977] (4 of 5) [CRLMB-1381/2024]
contained in Section 37 of the NDPS Act, bail should not be
granted.
6. I have considered the arguments advanced by learned
counsel for the petitioner as well as learned Special Public
Prosecutor and perused the material available on record.
7 As per the record, the samples were drawn in presence of
the magistrate and thereafter, same were sent to FSL. So far as
the argument of the counsel for the petitioner regarding period of
incarceration of the petitioner is concerned, this Court is of the
considered opinion that period of custody cannot be a sole ground
to release the petitioner on bail more particularly when huge
quantity of contraband was allegedly recovered from the
petitioner. As per the prosecution case, initially, contraband opium
weighing 6.625 Kgs. was recovered from the possession of the
petitioner and during investigation, an additional contraband
opium weighing 1.55 Kgs. was also recovered from the house of
the petitioner, which indicates involvement of the petitioner in
drug trafficking activities. Thus, prima facie, the conditions of
Section 37 of the NDPS Act are not satisfied in the instant case
and hence, considering the rigour of Section 37 of the NDPS Act,
but without commenting anything on the merits of the case, I am
not inclined to accept the instant bail application, filed on behalf of
the petitioner. Accordingly, this second bail application is
dismissed.
[2024:RJ-JP:15977] (5 of 5) [CRLMB-1381/2024]
8. However, considering the period of custody, the trial court is
directed to make all endeavours to conclude the trial within six
months from today. If the trial is not concluded within the
aforesaid time period, the petitioner would be at liberty to renew
the prayer of bail.
(ANIL KUMAR UPMAN),J
Sudhir Asopa/
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