Jafru S/O Shadiram vs State Of Rajasthan
2024 Latest Caselaw 1140 Raj/2

Citation : 2024 Latest Caselaw 1140 Raj/2
Judgement Date : 15 February, 2024

Rajasthan High Court

Jafru S/O Shadiram vs State Of Rajasthan on 15 February, 2024

Author: Anil Kumar Upman

Bench: Anil Kumar Upman

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

     S.B. Criminal Miscellaneous II Bail Application No. 15727/2023

Jafru S/o Shadiram, Aged About 23 Years, R/o Rayabka, Police
Station Sadar, District Alwar (Raj.). (At Present Confined In
Central Jail Alwar).
                                                                    ----Petitioner
                                     Versus
State of Rajasthan, Through PP
                                                                  ----Respondent


For Petitioner(s)          :     Mr. Jiya Ur Rahman
For Respondent(s)          :     Mr M.K. Sheoran, PP
                                 Mr. Zaheer Abbas, CI, Pratap Nagar,
                                 Jaipur



            HON'BLE MR. JUSTICE ANIL KUMAR UPMAN

                                   ORDER
        Order pronounced on              :::              15.02.2024

1.      The instant second bail application has been filed under

Section 439     Cr.P.C. on behalf of the petitioner who has been in

custody since 20.10.2022 in connection with FIR No.921/2022

registered at Police Station Sadar Alwar, District Alwar for the

offences under Sections 8/21 and 8/22 of the NDPS Act. Later on,

the police filed chargesheet for offences under Sections 8/21, 8/22

and 8/29 of the NDPS Act.



2.      The first bail application (No.7938/2023) was dismissed as

withdrawn by this Court vide order dated 10.10.2023 with liberty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.



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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.



4.   It is also contended by learned counsel for the petitioner that

no independent witness was associated with during the search and

seizure proceedings. Further, he contends that out of total 60

bottles (100 ML each) of Welcyrex Cough Syrup alleged to be

recovered from the petitioner, one bottle was taken out for sample

purpose, which clearly shows that samples were not taken

properly which vitiates the entire seizure proceedings. It is also

contended that the petitioner is in custody since 20.10.2022 and

trial will take long time in its conclusion. The petitioner has no

criminal antecedents under the NDPS Act. He thus, prays that the

instant application for bail may be accepted and the petitioner

may be released on bail.




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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.



6    I have heard and considered the submissions advanced by

counsel for the petitioner 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 petitioner 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; only one bottle was taken out for

sample purpose; absence of criminal antecedents under the NDPS

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Act as also looking to the custody period of the accused petitioner

but without making any comments on the merits/demerits of the

case, I deem it just and proper to accept the instant bail

application.

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

directed that accused-petitioner Jafru S/o Shri Shadiram who has

been in custody in connection with FIR No.921/2022 PS Sadar