Rajasthan High Court
Ramkishan Dhakar S/O Madhulal Dhakar vs State Of Rajasthan (2024:Rj-Jp:4227) on 22 January, 2024
Author: Anil Kumar Upman
Bench: Anil Kumar Upman
[2024:RJ-JP:4227]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Misc. Second Bail Application No. 726/2024
Ramkishan Dhakar S/o Madhulal Dhakar, Aged About 28 Years,
R/o Peethaji Ka Kheda, P.S. Mandalgarh, District Bhilwara (Raj.)
(At Present Confined In Sub Jail Malpura)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Avadesh Kumar Purohit
For Respondent(s) : Mr. Babulal Nasuna, PP
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
Order
22/01/2024
1. This second bail application under Section 439 Cr.P.C. has
been filed on behalf of the petitioner who is in custody since
09.02.2023 in connection with FIR No.42/2023 registered at Police
Station Todaraisingh, District Tonk for offence under Section 8/15
of the NDPS Act. Later on, police filed charge-sheet for offences
under Sections 8/15, 8/29 & 8/25 of NDPS Act and Sections 420,
467, 468 & 471 of IPC.
2. The first application for bail (No.7579/2023) was dismissed
as withdrawn vide order dated 20.10.2023 with liberty to file fresh
bail application after recording statement of seizure officer. Now,
the statement of the seizure officer has been recorded and as
such, this second application for bail under Section 439 Cr.P.C. has
been filed.
[2024:RJ-JP:4227] (2 of 4) [CRLMB-726/2024]
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. He further submits that no independent witnesses were
associated during recovery proceedings. He also contends that the
samples were not drawn in conformity with the
guidelines/instructions of Standing Order No.1/89 issued by the
NCB, New Delhi as per which, the Seizure Officer was required to
take separate sample from each sack. Counsel 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. As samples from each
sack were not drawn, it cannot be said with utmost certainty that
each sack was containing dodachura. He places reliance in the
[2024:RJ-JP:4227] (3 of 4) [CRLMB-726/2024]
case of Netram v State of Rajasthan, reported in 2014 (1)
Cr.L.R. (Raj.) 163. Learned counsel also contends that the
samples were deposited in FSL after 72 hours of the alleged
recovery which is also in violation of the Standing Order No.1/88
dated 15.03.1988. He argued that according to the Standing
Order No.1/88, samples should be deposited in FSL within 72
hours from the time of drawing samples. Besides these
arguments, he argues that inventory was prepared after two
months of the alleged recovery. The petitioner does not have any
criminal antecedents and he is in custody since 09.02.2023.
Charge-sheet has been filed in this matter and trial will take
considerable time in its conclusion. He thus, prays that the instant
bail application may be accepted and the petitioner may be
released on bail.
5. Per contra, learned Public Prosecutor vehemently opposed
the bail application on the ground that recovered contraband
comes within the definition of commercial quantity and the
petitioner has been apprehended at the spot and thus, considering
the embargo 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 Public Prosecutor and
perused 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
[2024:RJ-JP:4227] (4 of 4) [CRLMB-726/2024]
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 overall facts and circumstances of the
case and considering the submissions advanced by learned
counsel for the parties, especially the fact that as per the material
available on record, prima facie, there is non-compliance of
provisions of Sections 52A of NDPS Act; samples were not taken
from each sack; inventory was prepared after a delay of two
months, absence of criminal antecedents as also considering
period of custody of the petitioner, but without commenting
anything on the merits/demerits of the case, I deem it just and
proper to accept the instant bail application.
9. This bail application is accordingly, allowed and it is directed
that accused-petitioner - Ramkishan Dhakar S/o Madhulal
Dhakar, who has been arrested in connection with FIR
No.42/2023 Police Station Todaraisingh, District Tonk, shall be
released on bail provided he furnishes a personal bond in the sum
of Rs.1,00,000/- (Rupees One Lac Only) together with two
sureties in the sum of Rs.50,000/- (Rupees Fifty Thousand Only)
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, on all subsequent dates of hearing
and as and when called upon to do so.
(ANIL KUMAR UPMAN),J
CHARU SONI /23
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