Rajasthan High Court
Maheshchand Gupta S/O Prabhudayal ... vs State Of Rajasthan (2024:Rj-Jp:21538) on 2 May, 2024
Author: Anil Kumar Upman
Bench: Anil Kumar Upman
[2024:RJ-JP:21538]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous 2nd Bail Application No. 3667/2024
Maheshchand Gupta S/o Prabhudayal Gupta, Aged About 60
Years, R/o House No. 135, Shankar Dham Colony, Aagra Road,
Police Station Kanota, Jaipur, Presently Tenant Shop No. 115,
Saras Market, Vijaypura Road, Kanota, Jaipur. (Presently At
Confined In Central Jail Jaipur).
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Arvind Sharma
For Respondent(s) : Mr. N. S. Gurjar, PP
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
Order
02/05/2024
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.810/2022 registered at Police
Station Kanota, District Jaipur City (East) for the offences under
Sections 8/21 and 8/22 of the NDPS Act. Later on, the police filed
charge-sheet in this matter.
2. The first bail application (No.4157/2023) was dismissed as
withdrawn by this Court vide order dated 20.10.2023 with liberty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
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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 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. It is also contended by learned
counsel for the petitioner that the search and seizure proceedings
were conducted by Sub-Inspector-Krishan Kumar who was not
competent to conduct such proceedings and as such the entire
proceedings becomes vitiated. He also drawn attention of this
court towards the statement of Seizure Officer- Krishan Kumar
(PW-2). He submits that during cross-examination, the said
witness clearly deposed that he was neither posted as SHO nor he
was authorized by any higher official to conduct the search and
seizure proceedings. He further contends that inventory was also
not prepared in time and it has been prepared after an inordinate
delay, for which no proper explanation has been given. It is also
contended that the petitioner is in custody since 12.10.2022 and
trial will take long time in its conclusion. It is submitted that no
other case has been registered under the NDPS Act against the
petitioner. He thus, prays that the instant application for bail may
be accepted and the petitioner may be released on bail.
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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.
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; inventory was not prepared in
time; absence of criminal antecedents of the petitioner 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.
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8. This second bail application is accordingly, allowed and it is
directed that accused-petitioner Maheshchand Gupta S/o
Prabhudayal Gupta who has been in custody in connection with
FIR No.810/2022 PS Kanota, District Jaipur City (East) shall be
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 /34
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