Rajasthan High Court
Rafiq S/O Aas Mohammad @ Aasu vs State Of Rajasthan (2024:Rj-Jp:8888) on 21 February, 2024
Author: Praveer Bhatnagar
Bench: Praveer Bhatnagar
[2024:RJ-JP:8888]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Bail Application No. 15431/2023
Rafiq S/o Aas Mohammad @ Aasu, Aged About 26 Years, R/o
Raibka, Police Station Sadar, District Alwar (Raj.) (At Present
Accused Petitioner Confined In District Jail Alwar)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Jiya-UR-Rehman
For Respondent(s) : Mr. Imran Khan, PP
HON'BLE MR. JUSTICE PRAVEER BHATNAGAR
Order
21/02/2024
1. The instant bail application has been filed under Section 439
Cr.P.C. on behalf of the petitioner. The petitioner has been arrested
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. 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 the said provision of law. In support of this
[2024:RJ-JP:8888] (2 of 4) [CRLMB-15431/2023]
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.
3. Learned counsel for the petitioner also contends 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. He also
contends that the petitioner is in custody since long 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 ball.
4. Per contra, learned Public Prosecutor vehemently and
fervently opposes the ball 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.
5. 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.
[2024:RJ-JP:8888] (3 of 4) [CRLMB-15431/2023]
6. 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.
7. Having regard to the totality of the facts and circumstances of
the case and considering the arguments advanced by learned
counsel for the parties, so also, 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 as
only one bottle was taken out for sample purpose and in absence
of criminal antecedents under the NDPS Act as also looking to the
custody period of the accused petitioner, I deem it just and proper
to accept the instant ball application.
9. This bail application is accordingly, allowed and it is directed
that accused-petitioner Rafiq S/o Aas Mohammad @ Aasu who has
been in custody in connection with FIR No.921/2022 PS Sadar
Alwar, District Alwar shall be released on bail provided he
furnishes a personal bond in the sum of Rs.50,000/- together with
two sureties in the sum of Rs.25,000/- 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,
[2024:RJ-JP:8888] (4 of 4) [CRLMB-15431/2023]
on all subsequent dates of hearing and as and when called upon to
do so.
10. Before accepting the bail bonds, the trial court shall verify
the fact that the petitioner does not have any criminal case under
the NDPS Act. The petitioner shall also not involve in any other
similar offence during currency of the bail and mark his presence
before the concerned police station on first Monday of every
month till conclusion of trial. In case, breach of this condition is
reported or come to the notice of the Court, the trial court can
cancel the bail granted to him by this Court.
(PRAVEER BHATNAGAR),J
31-Mohit
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