Rajasthan High Court
Tanwar Singh S/O Prahalad Singh vs State Of Rajasthan (2024:Rj-Jp:10638) on 1 March, 2024
Author: Anil Kumar Upman
Bench: Anil Kumar Upman
[2024:RJ-JP:10638]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous 2nd Bail Application No. 2576/2024
Tanwar Singh S/o Prahalad Singh, Aged About 36 Years, R/o
Village Ahiron Ka Moholla, Ishwarpura, Kamalpura, Police Station
Modak, Distt. Kota. (Pititioner Is In Central Jail Jaipur)
----Petitioner
Versus
State Of Rajasthan, Through P.p.
----Respondent
For Petitioner(s) : Mr. Ali Mohammed Khan
For Respondent(s) : Mr. M.K. Sheoran, PP
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
Order
01/03/2024
1. The instant second bail application has been filed under
Section 439 Cr.P.C. on behalf of the petitioner who has been
arrested in connection with FIR No.37/2022 registered at Police
Station Vidhayakpuri, District Jaipur City (South) for the offence
under Section 8/21 of the NDPS Act. Later on, the police filed
charge-sheet for offences under Sections 8/25 of the NDPS Act.
2. The first bail application (No.10534/2023) 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withdrawn by this Court vide order dated 21.11.2023 with liberty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. Now, statement of the Seizure Officer has been
recorded. Thus, this second application for bail has been filed.
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
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sub-section 2 of Section 52A of the NDPS Act. He argues that the
process of drawing of samples has to be made 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
reported in (2016) 3 SCC 3749, (2) Mangilal vs State of
Madhya Pradesh reported in 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. He further submits that samples were
deposited after 72 hours of the alleged recovery. He further
contends that inventory was also not prepared in time and it has
been prepared after a great delay of eight months of the alleged
recovery. It is also contended that the petitioner is in custody
since 12.02.2022 and trial will take long time in its conclusion. It
is submitted that one other case was registered against the
petitioner under the NDPS Act in which, he has been acquitted
vide judgment dated 21-06-2016. He thus, prays that the instant
application for bail may be accepted and the petitioner may be
released on bail.
4. 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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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.
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 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; sample were not deposited within
72 hours; inventory was prepared after a delay of nearly eight
months 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.
8. This second bail application is accordingly, allowed and it is
directed that accused-petitioner Tanwar Singh S/o Prahalad
Singh who has been in custody in connection with FIR
No.37/2022 PS Vidhayakpuri, District Jaipur City (South) shall be
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released on bail provided that 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, on all subsequent dates
of hearing and as and when called upon to do so.
9. 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.
(ANIL KUMAR UPMAN),J
GAUTAM JAIN /41
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