Rajasthan High Court
Harish S/O Mohan Lal vs The State Of Rajasthan ... on 27 March, 2024
Author: Anil Kumar Upman
Bench: Anil Kumar Upman
[2024:RJ-JP:14989]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Second Bail Application No.
3611/2024
Harish S/o Mohan Lal, Aged About 36 Years, R/o Dhabla Kham,
Police Station Badod Distt. Agara Malwa (M.p.) (Petitioner Is In
Sub Jail Bhawanimandi)
----Petitioner
Versus
The State Of Rajasthan, Through Pp
----Respondent
Connected With
S.B. Criminal Miscellaneous Second Bail Application No.
Gurbhej Singh S/o Milkha Singh, Aged About 42 Years, R/o
House No. 761 3Rd Floor, Gali No. 7, Govindpuri P.s. Govindpuri,
New Delhi. (Petitioner Is In Sub Jail Bhawanimandi).
----Petitioner
Versus
The State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Ali Mohd. Khan
For Respondent(s) : Mr. M.K. Sheoran, PP
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
Order
27/03/2024
1. These bail applications have been filed under Section 439
Cr.P.C. on behalf of the accused-petitioners who have been
arrested in connection with FIR No.106/2023 registered at Police
Station Bhawanimandi, District Jhalawar for offences under
Sections 8/18, 8/15 & 8/29 of the NDPS Act.
[2024:RJ-JP:14989] (2 of 4) [CRLMB-3611/2024]
2. The first bail applications (No.8348/2023 & 8349/2023) were
dismissed as withdrawn by this Court vide order dated 02.12.2023
with liberty to file fresh bail applications after recording
statements of the Seizure Officer. Learned counsel for the
petitioners submits that the statement of the seizure officer has
been recorded at trial and hence, these second applications for
bail have been filed.
3. It is contended by learned counsel for the petitioners that
the accused petitioners have 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. Counsel places reliance upon the judgments of Hon'ble
Supreme Court passed in the cases of (1) Union of India vs
Mohanlal & Anr : (2016) 3 SCC 3749 and (2) Mangilal vs
State of Madhya Pradesh: 2023 SCC online SC 862. He
further submits that the samples were deposited with the FSL
after 72 hours on 23.03.2023 which is in violation of the Standing
Order No.1/88 dated 15.03.1988. He further argues that
according to the Standing Order No.1/88, samples should be
deposited in FSL within 72 hours from the time of drawing
samples. The petitioners have no criminal antecedents. It is also
argued that out of sixteen cited witnesses, only one witness has
been examined so far and thus, it is clear that trial will take long
[2024:RJ-JP:14989] (3 of 4) [CRLMB-3611/2024]
time in its conclusion. He thus, prays that the instant applications
for bail may be accepted and the petitioners may be released on
bail.
4. Per contra, learned Public Prosecutor vehemently and
fervently opposes the bail applications. He submits that huge
quantity of contraband have been recovered from the petitioners
and thus, considering the rigour of Section 37 of the NDPS Act,
bail should not be granted.
5. I have heard and considered the submissions advanced by
counsel for the petitioners as well as learned Public Prosecutor and
perused 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 overall facts and circumstances of the
case and considering the arguments advanced at bar, especially
the fact that as per the FIR, prima facie, it appears that the
mandatory provisions of Section 52A of the NPDS Act and the
guidelines laid down by the Hon'ble Supreme Court in the cases of
Union of India vs Mohanlal (supra), Mangilal vs State of Madhya
[2024:RJ-JP:14989] (4 of 4) [CRLMB-3611/2024]
Pradesh (supra) have not been followed in the present case, the
petitioners do not have any criminal antecedents; as also looking
to the period of custody and the fact that only one witness out of
sixteen cited witnesses, has been examined so far, but without
making any comments on the merits/demerits of the case, I deem
it just and proper to accept the instant bail applications.
8. Thus, these second bail applications are allowed and it is
directed that accused petitioners - Harish S/o Shri Mohanlal
and Gurbhej Singh S/o Shri Milkha Singh, arrested in
connection with FIR No.106/23 registered at Police Station
Bhawanimandi, District Jhalawar shall be released on bail provided
each of them furnishes a personal bond in the sum of Rs.50,000/-
(Rupees Fifty Thousand only) together with two sureties in the
sum of Rs.25,000/- (Rupees Twenty Five Thousand only) each to
the satisfaction of the learned trial court with the stipulation that
each of them 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. However, it is made clear that the petitioners shall not
involve in similar offence(s) during pendency of bail granted by
this Court. The petitioners are further directed to mark presence
in the concerned police station on first Monday of every month, till
trial is concluded. If breach of any of these conditions is reported
or come to the notice of the Court, the same shall alone be a
reason for the trial court to cancel the bail granted to the
petitioners by this Court.
(ANIL KUMAR UPMAN),J
LALIT MOHAN /66-67
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