Rajasthan High Court
Ravindar Taksali S/O Ramavtar Taksali vs The Union Of India ( Ncb) ... on 12 March, 2024
Author: Praveer Bhatnagar
Bench: Praveer Bhatnagar
[2024:RJ-JP:12258]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Bail Application No. 5048/2023
Taiyab Rehman S/o Tetlu Shiekh, R/o Village Echahar, District
Malda, State West Bengal. (Presently Accused Confined In Central
Jail Jaipur)
----Petitioner
Versus
Union of India, Through S.P.P.
----Respondent
Connected With
S.B. Criminal Miscellaneous Bail Application No. 6856/2023
Ravindar Taksali S/o Ramavtar Taksali, Aged About 30 Years,
Residence House No. 1943, Pandit Shivdeen Ji, Kishanpole
Bazaar, Jaipur (At Present Confined In Central Jail, Jaipur)
----Petitioner
Versus
The Union of India ( NCB), Through Its Standing Counsel
----Respondent
For Petitioner(s) : Mr. Deepak Chauhan
Mr. Ali Mohd. Khan
For Respondent(s) : Mr. Tej Prakash Sharma, SPP
HON'BLE MR. JUSTICE PRAVEER BHATNAGAR
Order
12/03/2024
1. The instant criminal miscellaneous bail applications have
been filed under Section 439 Cr.P.C. on behalf of accused-
petitioners Taiyab Rehman S/o Tetlu Shiekh & Ravindar Taksali S/o
Ramavtar Taksali. The accused-petitioners have been arrested in
connection with FIR No.VIII(IO)04/NCB/JZU/2023 registered at NCB
Bureau, Jodhpur for the offence(s) under Sections 8/20(B)(ii)A, 21,
22, 25, 27A and 29 of Narcotic Drugs and Psychotropic Substances
Act, 1985 (for short 'NDPS').
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2. Learned counsel for the accused-petitioner Taiyab Rehman
submits that the accused-petitioner has been falsely implicated in
the case. He further submits that the entire proceedings of seizure
from the possession of accused-petitioner Taiyab Rehman is illegal.
The secret information was received on 10.03.2023 and despite
knowing the fact, the concerned Seizure Officer did not accompany
any independent witness for effecting the search in bus bearing
registration No.HR-47-D-3128. He further submits that the
recovery was effected in the evening whereas, seizure memo was
prepared at night. He further submits that the Seizure Officer, after
recovering the alleged quantity of cocaine, marked the packets as
P-1 to P-8 and thereafter, drew the samples. The entire
proceedings conducted by the Seizure Officer is vitiated as,
samples were drawn in the absence of Magistrate, therefore,
conditions enshrined under Section 52-A of the NDPS Act has been
violated. He further argues that the other accused Ravindar Taksali
was detained at 09:20 PM near Hilton Hotel, Jaipur, whereas, the
accused Taiyab Rehman was detained at 06:35 PM in the evening
and site plan was prepared at 06:35 pm in the evening on
13.03.2023. The site plan prepared at 06:35 PM, also bears the
signature of other accused Ravindar Taksali. Thus, this fact shows
that the entire recovery was falsely made against the present
accused-petitioner Taiyab Rehman.
3. Learned counsel for the accused-petitioner further submits
that notices to the witnesses were given on 13.03.2023, at 09:45
PM indicating the fact that petitioner Taiyab Rehman is carrying
bag with cocaine in bus bearing registration No.HR-47-D-3128 and
the said bus is expected to arrive at 13.03.2023 in evening
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between 06-06:30 PM at Narayan Circle, Jaipur, whereas, the
concerned Seizure Officer has already recovered the alleged
quantity of cocaine in the evening. Thus, the notices issued to
witnesses Kailash Chand and Rajesh Kumar, indicating the above
fact are totally against the record. He further submits that the
drawing of the samples by the Seizure Officer are also contrary to
Section 55 of the NDPS Act. It is further argued that the accused-
petitioner is in custody since 11 months and only one witness has
been examined. The prosecution has cited 10 witnesses in the
charge-sheet submitted before the learned trial Court. The
examination of rest of the witnesses may take considerable time,
therefore, considering the above facts and illegality committed by
the Seizure Officer, the bail application of the accused-petitioner
Taiyab Rehman may be allowed.
4. In addition to the above, learned counsel appearing on behalf
of accused Ravindar Taksali also argues that the alleged quantity
of MD Powder, Cocaine Powder and Charas were found to be below
'commercial quantity' and there is no nexus between the accused
Taiyab Rehman and the accused-petitioner Ravindar Taksali.
Therefore, there is no reason to believe that the said recovery of
commercial quantity of cocaine powder alleged to be in the
possession of the accused-petitioner Taiyab Rehman was related to
the present accused-petitioner Ravindar Taksali. Therefore, bail
application of accused-petitioner Ravindar Taksali may also be
allowed.
5. Learned counsels for the accused-petitioners places reliance
upon the following judgments:-
(i) Karim Adaldar Vs. The State of West Bengal (in
Special Leave to Appeal (Crl.) No.8653/2022)
[2024:RJ-JP:12258] (4 of 8) [CRLMB-5048/2023]
decided on 25.11.2022 passed by Hon'ble
Supreme Court.
(ii) Sabir Khan Pathan Vs. Union of India in S.B.
Criminal Miscellaneous Bail Application
No.2361/2023 decided on 20.09.2023 passed
by Co-ordinate Bench.
6. Learned counsel for Narcotics Control Bureau (for short
'NCB') vehemently opposes the bail applications and contends that
for prima facie satisfaction, the narcotic drugs and psychotropic
substances is being carried by accused-petitioner, detection test
was conducted by the concerned Seizure Officer. No samples were
drawn by the Seizure Officer and just to verify that the articles
carried by the accused-petitioners are prohibited articles,
detection test was conducted by the Seizure Officer.
7. Learned counsel for NCB also submits that samples from the
alleged contraband articles were drawn by the concerned Special
Magistrate, Jaipur Metropolitan No.9, therefore, at this stage, it
cannot be said that samples were not drawn in accordance with
provisions of Section 52-A of the NDPS Act. It is further argued that
seizure from both the accused-petitioners were made in the
presence of two independent witnesses. Hence, recovery of
contraband articles from the present accused-petitioners cannot
be disbelieved. He further argues that there was no lapse on the
part of respondent-NCB as the said exercise was done under the
inquiry and not investigation. The investigation starts only after
institution of the FIR. Learned counsel for NCB further argues that
on the secret information received on 10.03.2023, accused-
petitioner Taiyab Rehman was intercepted on 13.03.2023, in bus
bearing registration No.HR-47-D-3128 and thereafter from his
possession, a bag was recovered, containing 08 capsules of
[2024:RJ-JP:12258] (5 of 8) [CRLMB-5048/2023]
cocaine powder, weighing 239 grams and on the same day,
accused-petitioner Ravindar Taksali was also detained and from his
car bearing registration No.RJ-14-QC-3410, MD powder weighing
14 grams, cocaine powder weighing 18 grams and charas powder
weighing 15 grams were recovered. He further contends that in
the secret information recorded on 10.03.2023, it was
categorically mentioned that present accused-petitioner Taiyab
Rehman, who is carrying the cocaine powder in a bag, is going to
deliver the cocaine powder to the accused-petitioner Ravindar
Taksali. Therefore, it cannot be said that recovery of contraband
articles effected from accused-petitioner Ravindar Taksali was
below commercial quantity. Learned counsel further argues that
under Section 30 of the Evidence Act, the disclosure of the other
co-accused is admissible against the other co-accused. Therefore,
in the light of rider imposed under Section 37 of the NDPS Act, the
bail applications of both the accused-petitioners are liable to be
dismissed.
8. Learned counsel for the NCB places his reliance on the
judgment of Narcotics Control Bureau Vs. Mohit Aggarwal in
Criminal Appeal Nos.1001-1002 of 2022 and Petitions for Special
Leave to Appeal (Crl.) No.6128-29 of 2021 decided on 19.07.2022
passed by Hon'ble Supreme Court.
9. Heard and perused the entire charge-sheet and material
placed on record.
10. It has been alleged in the charge-sheet that after receiving
the secret information that accused-petitioner Taiyab Rehman S/o
Tetlu Sheikh, District Malda, West Bengal is carrying bag
containing cocaine drug from Delhi to Jaipur in bus bearing
[2024:RJ-JP:12258] (6 of 8) [CRLMB-5048/2023]
registration No.HR-47-D-3128, expected to be arrived at Narayan
Singh Circle on 13.03.2023, in between 6-6:30 PM and going to
deliver the said drug to accused-petitioner Ravindar Taksali S/o
Ram Avtar, search was conducted by Seizure Officer Laburam on
13.03.2023, in bus bearing registration No.HR-47-D-3128 and
accused-petitioner Taiyab Rehman was found in possession of a
bag carrying 8 capsules filled with cocaine powder. Thereafter, on
the same day, other co-accused-petitioner Ravindar Taksali was
detained nearby Hilton Hotel and from his possession also, in a
car, MD powder, cocaine powder and charas powder was
recovered. It is also alleged in the charge-sheet that accused-
petitioners Taiyab Rehman and Ravindar Taksali were on contact
through mobiles. It is also alleged in the charge-sheet that
accused-petitioner Taiyab Rehman was regularly supplying the
drugs to the other accused-petitioner Ravindar Taksali and they
were in continuous contact from 21.02.2023 onwards.
11. It is also alleged in the charge-sheet that apart from the
contraband articles, Rs.5,00,000/- were also recovered from the
possession of accused-petitioner Ravindar Taksali.
12. As far as non-compliance of Section 52-A of the NDPS Act is
concerned, in the present case, after depositing the contraband
articles, samples were drawn by the concerned Special Magistrate,
Jaipur Metropolitan No.9. It would be premature for this Court to
express any opinion regarding detection test conducted by the
Seizure Officer further to express any opinion with regard to non-
compliance of Section 52-A of the NDPS Act.
13. At the time of considering bail applications, this minute
scrutiny is not required. This fact can be analysed only by the
[2024:RJ-JP:12258] (7 of 8) [CRLMB-5048/2023]
concerned trial Judge. The judgment of Sabir Khan Pathan (supra)
relied upon by the accused-petitioners is totally on different facts.
In that matter, 'ganja' was recovered from the petitioner Sabir
Khan Pathan and Court, after considering the definition of ganja,
was of the view that dried leaves do not fall within the ambit of
'ganja'. The opinion of the Co-ordinate Bench, commenting upon
the sanctity of conducting the detection test, cannot be taken into
consideration as the proceedings under Section 52-A was later on
conducted by the concerned Magistrate. Therefore, the judgment
relied upon by the accused-petitioners are entirely distinguishable.
14. In the matter of Karim Adaldar Vs. The State of West Bengal,
the Hon'ble Apex Court granted the bail to the petitioner in view of
custody period already undergone and on likelihood of non-
completion of trial in the near future.
15. In the present case, prosecution has cited 10 witnesses in the
charge-sheet and one witness has already been examined.
16. In the matter of Narcotics Control Bureau Vs. Mohit Aggarwal
(supra), the Hon'ble Apex Court, after considering the embargo
contained under Section 37 of the NDPS Act, categorically held
that "the length of period of custody or the fact that the charge-
sheet has been filed and the trial has commenced are by
themselves not considerations that can be treated as persuasive
grounds for granting relief to the respondent under Section 37 of
the NDPS Act".
17. In the present case, there is prima facie enough material
against the accused-petitioners indicating their involvement in the
alleged crime. From the possession of accused-petitioner Taiyab
Rehman, 239 grams of cocaine was recovered, which comes within
[2024:RJ-JP:12258] (8 of 8) [CRLMB-5048/2023]
the ambit of 'commercial quantity'. Similarly, the disclosure
statement of accused-petitioner Taiyab Rehman, on the same day,
other accused-petitioner Ravindar Taksali was also apprehended
and from his possession, recovery of MD powder, cocaine and
charas was recovered. Therefore, prosecution is prima facie able to
show the nexus between the accused-petitioner Taiyab Rehman
and Ravindar Taksali. The allegations levelled in the charge-sheet
itself are enough to suggest that accused-petitioners were
involved in carrying and receiving the commercial quantity of
prohibited drugs/narcotic substances.
18. Thus, looking to the above facts and rider imposed under
Section 37 of the NDPS Act, this Court is of the view that there is
no reasonable ground to believe that accused-petitioners are not
involved in the alleged offence and are not guilty of such offence.
19. In view of the above, the present criminal miscellaneous bail
applications filed under Section 439 Cr.P.C. on behalf of accused-
petitioners are hereby dismissed.
20. A copy of this order be separately placed in the connected
file.
(PRAVEER BHATNAGAR),J
2-3-Rahul Joshi/-
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