Rajasthan High Court

Hanuman @ Hanman Sansi S/O Shaukin @ ... vs State Of Rajasthan (2024:Rj-Jp:8107) on 15 February, 2024

Author: Anil Kumar Upman

Bench: Anil Kumar Upman

[2024:RJ-JP:8107]

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

     S.B. Criminal Miscellaneous II Bail Application No. 16131/2023

1.        Hanuman @ Hanman Sansi S/o Shaukin @ Shyokin Sansi,
          Aged About 40 Years, R/o Sansiyon Ki Dhani, Tan Kareda
          Bujurg, Police Station Dantwas, District Tonk, Presently
          Residing At Beed Sarkari, Behind Jda Office, Bapu Kacchi
          Basti, Vidyadhar Nagar, Jaipur Police Station, Vidyadhar
          Nagar, Jaipur (Rajasthan). (Presently Confined In District
          Jail Sikar)
2.        Guddu Sansi S/o Pappu Sansi, Aged About 19 Years, R/o
          Rundal, Police Station Chandwaji, District Jaipur, Presently
          269, Beed Sarkari, Behind Jda Office Kacchi Basti,
          Vidyadhar Nagar, Jaipur, Police Station Vidyadhar Nagar,
          Jaipur (Rajasthan). (Presently Confined In District Jail
          Sikar)
                                                                      ----Petitioners
                                       Versus
1.        State of Rajasthan, Through PP
2.        Ashok Choudhary S/o Late Mangal Chand Choudhary, R/o
          Plot No. 44, Shiv Colony, Sector -8, Vidyadhar Nagar,
          Jaipur, Presently Sho, Police Station Sadar Sikar, District
          Sikar (Rajasthan).
                                                                    ----Respondents


For Petitioner(s)            :     Mr. Umesh Dixit
For Respondent(s)            :     Mr. Sanjeev Mahala, PP



            HON'BLE MR. JUSTICE ANIL KUMAR UPMAN

                                        Order

15/02/2024

1.      The instant second bail application has been filed under

Section 439 Cr.P.C. on behalf of the petitioners who have been in

custody since 28.03.2023 in connection with FIR No.144/2023

registered at Police Station Sadar Sikar District Sikar for the

offences under Sections 8, 20, 25 of the NDPS Act. Later on, the

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police has also filed chargesheet in this matter before the learned

court below.



2.    The first bail application (No.14878/2023) was dismissed as

withdrawn by this Court vide order dated 21.11.2023 with liberty

to file fresh bail application after recording statement of the

Seizure Officer and after recording statement of the said witness,

this second application for bail has been filed.



3.    Learned counsel submits that the accused petitioners 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.



4.    It is also contended by learned counsel for the petitioners

that no independent witness was associated with during the

search and seizure proceedings and inventory was prepared on

18.04.2023      whereas    the     alleged recovery              was   affected on

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28.03.2023. He also contends that as per the testimony of the

seizure officer, the police team took out the contraband from all

the bags on a Tirpal (plastic cloth) and mixed the entire substance

and took out one sample for testing purpose. Thus, the sample

was drawn in violation of Standing Order No.1/88 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 packet.                        Learned counsel for

the petitioner also relied upon the order passed by Coordinate

Bench of this Court in Netram v State of Rajasthan (2014 (1)

Cr.L.R. (Raj.) 163. Counsel further submits that the petitioners

have no criminal antecedents of similar nature. The petitioners are

in custody since 28.03.2023 and trial will take long time in its

conclusion. He thus, prays that the petitioners may be released on

bail.



5.      Per   contra,   learned       Public       Prosecutor       vehemently    and

fervently opposes the bail application. He submits that looking to

the quantity of recovered contraband, the rigour of Section 37 of

the NDPS Act applies to the instant case and therefore, bail should

not be granted.




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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.    Section 37 of the NDPS Act does not create an absolute

embargo for grant of bail. Further, while considering an application

for grant of bail, it is not required for the Court to record positive

finding that the accused is not guilty. The only requirement of law

is that the Court would look at the material in a broad manner and

reasonably see whether the accused's guilt may be proved. The

satisfaction which courts are expected to record i.e, the accused

may not be guilty is only prima facie, based on a reasonable

reading, which does not call for meticulous examination of the

material collected during investigation.



8.    Having regard to the totality of the facts and circumstances

of the case and considering the arguments advanced by learned

counsel for the petitioners as well as learned Public Prosecutor

especially the fact that as per the prosecution case, prima facie,

there appears to be non-compliance of provisions of Sub-Section 2

of Section 52A of the NDPS Act; one sample was taken from the

entire contraband allegedly kept in eight bags, after mixing it on a

tirpal; absence of criminal antecedents under the NDPS Act as also

looking to the custody period of the accused petitioners but

without making any comments on the merits/demerits of the case,

I deem it just and proper to accept the instant bail application.

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9. This second bail application is accordingly, allowed and it is

directed that accused-petitioners (1) Hanuman @ Hanman Sansi

S/o Shri Shaukin @ Shyokin Sansi and (2) Guddu Sansi S/o Pappu