Rajasthan High Court
Prem Kumar S/O Shri Ramchandra vs The State Of Rajasthan ... on 21 March, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JP:17834]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous 2nd Bail Application No. 8427/2023
Prem Kumar S/o Shri Ramchandra, Aged About 21 Years, R/o
Kesardesar, Deshnok, Bikaner (Raj.) (Accused In Sub Jail
Beawar, District Ajmer).
----Petitioner
Versus
The State Of Rajasthan, Through Pp
----Respondent
Connected With
S.B. Criminal Miscellaneous 3rd Bail Application No. 1739/2024
Permeshwar S/o Shri Ramchandra, Aged About 26 Years, R/o
Gusaisar, Napasar, Bikaner (Raj.) (Accused In Sub Jail Beawar,
District Ajmer).
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Ms. Anushree Sharma
Ms. Mitali Vaishnav
For Respondent(s) : Mr.S.S.Mehla, PP
HON'BLE MR. JUSTICE FARJAND ALI
(THROUGH VIDEO CONFERENCING)
Order
21/03/2024
1. The jurisdiction of this court has been invoked by way of
filing the instant bail applications under Section 439 CrPC at the
instance of accused-petitioners. The requisite details of the matter
are tabulated herein below:
[2024:RJ-JP:17834] (2 of 8) [CRLMB-8427/2023]
S.No. Particulars of the Case
2. Concerned Police Station Vijay Nagar
3. District Ajmer
4. Offences alleged in the FIR Section 8/18 of the NDPS
Act
5. Offences added, if any -
6. Date of passing of impugned 23.09.2021
order
2. The first and second bail applications of the petitioner
Parmeshwar have been dismissed as withdrawn by this Court vide
orders dated 28.03.2022 & 31.07.2023 passed in S.B. Criminal
Misc. Bail Application Nos.16169/2021 (both petitioners) &
9302/2023 and a liberty was afforded to the petitioners to renew
the prayer for bail after the statement of Seizing Officer is
recorded. Now, the statement of Seizing Officer has been
recorded. Hence the instant bail applications.
3. Briefly stated the facts of the case are that on 12.3.2021,
the SHO of Police Station Vijay Nagar Shri Sunil Bera and his team
intercepted a Motorcycle bearing registration No.RJ07 FS2869. The
said vehicle was being driven by petitioner Parmeshwar and and
the another person namely Prem Kumar was a pillion rider. Upon
making search, a plastic bag came to be recovered wherein
opium was found. The total weight of the opium was 3 Kg 270
gms. whereafter, samples were taken from the seized contraband
and marked as 'B' and the same were sent to the FSL for its
examination. The accused were taken into custody. After usual
investigation, a case under Section 8/18 of the NDPS Act has been
registered. Hence, the bail applications.
[2024:RJ-JP:17834] (3 of 8) [CRLMB-8427/2023]
4. It is contended on behalf of the accused-petitioners that no
case for the alleged offences is made out against them and their
incarceration is not warranted. There are no factors at play in the
case at hand that may work against grant of bail to the accused-
petitioners and they have been made an accused based on
conjectures and surmises. They further submits that the accused
were taken into custody on 12.03.2021 and since then they are
behind the bars. Now, more than three years have elapsed but the
trial is not going to be culminated and still it seems that a further
long time shall be taken in conclusion of the same, thus, they may
be enlarged on bail.
5. Contrary to the submissions of learned counsel for the
petitioner, learned Public Prosecutor opposes the bail application
and submits that the present case is not fit for enlargement of
accused on bail.
6. Have heard and considered the submissions made by both
the parties and have perused the material as made available to
this Court.
7. Perusal of the material available on record revealing that on
12.03.2021, 3.270 Kg opium has been recovered from the
possession of the petitioners. The sample taken at the spot by
the Seizing Officer Marked as 'B' and the same was sent to the
FSL for detection of morphine and its derivatives.
8. It is an admitted fact that the samples taken by the Seizing
Officer on 12.03.2021, were sent to the FSL for chemical
examination on 15.03.2021; the same were not taken in the
presence of the Magistrate. Apparently, the guidelines issued by
[2024:RJ-JP:17834] (4 of 8) [CRLMB-8427/2023]
the Government vide Standings Order Nos.1/1988 & 1/1989 as
well as the mandate of law contained under Section 52-A of the
NDPS Act have not been complied with. Admittedly, no samples
were taken in the presence of Magistrate whereas the samples
taken at the spot were sent to the FSL.
9. In this view of the matter, it can be said that the samples
sent to the FSL and the report of the FSL dated 16.07.2021 is
nothing but is a waste paper as propounded in a judgment titled
as Mohammed Khalid and another Vs. The State of
Telangana passed by Hon'ble the Supreme Court in Criminal
Appeal No(S). 1610 Of 2023 dated 01.03.2024, it was held that
since no proceedings were undertaken for preparing of inventory
and drawings of samples as per Section 52-A of NDPS Act, thus,
the FSL was considered to be waste paper and was not
considered worthy of being read in evidence on the basis of this
inter alia other aspects, Hon'ble the Apex Court acquitted the
appellants of all charges. The relevant paragraph of the above
judgment is reproduced as under:-
"22. Admittedly, no proceedings under Section 52A of the
NDPS Act were undertaken by the Investigating Officer PW-5
for preparing an inventory and obtaining samples in presence
of the jurisdictional Magistrate. In this view of the matter, the
FSL report(Exhibit P11) is nothing but a waste paper and
cannot be read in evidence."
10. In this instant matter too, the alleged contraband was
seized on 12.03.2021 and Section 52-A of NDPS Act has not been
complied with i.e. after the seizure of the contraband; no samples
drawn in the presence of magistrate were sent for scientific
[2024:RJ-JP:17834] (5 of 8) [CRLMB-8427/2023]
investigation, thus, the requisite compliance of Section 52-A of
NDPS Act has not been made.
11. Moving on to the impediments contained under Section 37
of the NDPS Act, it is considered relevant to refer to the recent
ruling passed by Hon'ble the Supreme Court in Mohd Muslim @
Hussain V. State (NCT OF DELHI) Vs. State (NCT of Delhi)
passed by Hon'ble the Supreme Court in Special Leave Petition
(Crl.) No.915 of 2023 vide order dated 28.03.2023, wherein while
discussing the parameters of Section 37 of the NDPS Act, it was
held that the provision cannot be construed in a manner that
would render the grant of bail impossible. The accused-appellant
in the aforementioned case was directed to be enlarged on bail
looking to the long period of incarceration. The paragraphs of
Mohd. Muslim @ Hussain (supra) relevant to the present matter
are reproduced below:
"18. The conditions which courts have to be cognizant
of are that there are reasonable grounds for believing that the
accused is "not guilty of such offence" and that he is not likely
to commit any offence while on bail. What is meant by "not
guilty" when all the evidence is not before the court? It can
only be a prima facie determination. That places the court's
discretion within a very narrow margin. Given the mandate of
the general law on bails (Sections 436, 1 Special Leave
Petition (CRL.) NO(S). 915 of 2023, decided on 28.03.2023.
437 and 439, CrPC) which classify offences based on their
gravity, and instruct that certain serious crimes have to be
dealt with differently while considering bail applications, the
additional condition that the court should be satisfied that the
accused (who is in law presumed to be innocent) is not guilty,
has to be interpreted reasonably. Further the classification of
offences under Special Acts (NDPS Act, etc.), which apply over
[2024:RJ-JP:17834] (6 of 8) [CRLMB-8427/2023]
and above the ordinary bail conditions required to be assessed
by courts, require that the court records its satisfaction that the
accused might not be guilty of the offence and that upon
release, they are not likely to commit any offence. These two
conditions have the effect of overshadowing other conditions.
In cases where bail is sought, the court assesses the material
on record such as the nature of the offence, likelihood of the
accused co-operating with the investigation, not fleeing from
justice: even in serious offences like murder, kidnapping, rape,
etc. On the other hand, the court in these cases under such
special Acts, have to address itself principally on two facts:
likely guilt of the accused and the likelihood of them not
committing any offence upon release. This court has generally
upheld such conditions on the ground that liberty of such
citizens have to - in cases when accused of offences enacted
under special laws - be balanced against the public interest.
19. A plain and literal interpretation of the conditions under
Section 37 (i.e., that Court should be satisfied that the accused
is not guilty and would not commit any offence) would
effectively exclude grant of bail altogether, resulting in punitive
detention and unsanctioned preventive detention as well.
Therefore, the only manner in which such special conditions as
enacted under Section 37 can be considered within
constitutional parameters is where the court is reasonably
satisfied on a prima facie look at the material on record
(whenever the bail application is made) that the accused is not
guilty. Any other interpretation, would result in complete
denial of the bail to a person accused of offences such as those
enacted under Section 37 of the NDPS Act."
(Emphasis Supplied)
12. In Rabi Prakash Vs. State of Odisha passed in Special
leave to Appeal (Crl.) No.(s) 4169/2023, Hon'ble the Apex Court
has again passed an order dated 13th July, 2023 dealing this
issue and has held that the provisional liberty(bail) overrides the
prescribed impediment in the statute under Section 37 of the
[2024:RJ-JP:17834] (7 of 8) [CRLMB-8427/2023]
NDPS Act as liberty directly hits one of the most precious
fundamental rights envisaged in the Constitution, that is, the
right to life and personal liberty contained in Article 21.
13. At the stage of hearing of a bail plea pending trial, although
this Court is not supposed to make any definite opinion or
observation with regard to the discrepancy and legal defect
appearing in the case of prosecution as the same may put a
serious dent on the State's case yet at the same time, this Court
can not shut its eye towards the non-compliance of the
mandatory provision, more than three years of incarceration
pending trial, failure of compliance with the procedure of
sampling and seizure and the serious issue of competence of
seizure officer. In the case of Mohd. Muslim @ Hussain
(Supra) it has been propounded that at the stage of hearing a
bail application under Section 439 Cr.P.C., although it is not
possible to make a definite opinion that he is not guilty of the
alleged crime but for the limited purpose for the justifiable
disposal of the bail application, a tentative opinion can be formed
that the material brought on record is not sufficient enough to
attract the embargo contained under Section 37 of the NDPS Act.
Though specific arguments have not been conveyed but looking
to the fact that the accused is in custody, this court feels that the
accused is not supposed to establish a case in support of his
innocence rather his detention is required to be justified at the
instance of the prosecution, therefore, this court went deep into
the facts of the case and the manner in which the entire
proceedings have been undertaken. If other surrounding factors
[2024:RJ-JP:17834] (8 of 8) [CRLMB-8427/2023]
align in consonance with the statutory stipulations, the personal
liberty of an individual can not encroached upon by keeping him
behind the bars for an indefinite period of time pending trial. In
view of the above, it is deemed suitable to grant the benefit of
bail to the petitioner in the present matter. Needless to say, none
of the observations made herein under shall affect the rights of
either of the parties during trial and this Court refrains from
commenting on the niceties of the matter.
14. Accordingly, the instant bail applications under Section 439
Cr.P.C. are allowed and it is ordered that the accused-petitioners
shall be enlarged on bail provided each of them furnishes a
personal bond in the sum of Rs.50,000/- with two sureties of
Rs.25,000/- each to the satisfaction of the learned trial Judge for
their appearance before the court concerned on all the dates of
hearing as and when called upon to do so.
(FARJAND ALI),J
Mamta/4-5
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