Rajasthan High Court
Sunil S/O Mangilal Vishnoi vs State Of Rajasthan (2024:Rj-Jp:21375) on 6 May, 2024
Author: Anil Kumar Upman
Bench: Anil Kumar Upman
[2024:RJ-JP:21375]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Bail Application No. 4994/2024
Sunil S/o Mangilal Vishnoi, Aged About 24 Years, R/o Dholi,
Police Station Kalyanpur, District Barmer (Raj.) (At Present
Confined in the District Jail, Baran)
----Petitioner
Versus
State of Rajasthan, Through PP
----Respondent
Connected With
S.B. Criminal Miscellaneous Bail Application No. 5002/2024
Kamlesh S/o Mathuralal Lodha, Aged About 22 Years, R/o Dhokri
Kho Police Station Sarthal, District Baran, Raj. (Accused
Petitioner Confined in District Jail Baran)
----Petitioner
Versus
State of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Rajveer Singh Gurjar
Mr. Mukesh Pal Jadoun
For Respondent(s) : Mr. Mahendra Meena, PP
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
Order
06/05/2024
1. These bail applications have been filed under Section 439
Cr.P.C. on behalf of the petitioners who have been arrested in
connection with FIR No.63/2023 registered at Police Station
Kawai, District Baran for the offences punishable under Section
8/15 of the NDPS Act and Section 3/25 of Arms Act. Later on,
police filed charge-sheet for the offences punishable under
Sections 8/29 and 8/15 of the NDPS Act and Section 3/25 of Arms
Act and Sections 420 and 465 of IPC.
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2. 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 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 in the FSL after 7 days of the alleged
recovery. The inventory of the alleged recovered contraband was
also not prepared in time and it has been prepared after a great
delay of 37 days of the alleged recovery. It is also argued that no
independent witness was associated in the search and seizure
proceedings. Learned counsel also contends that the seizure
officer in his testimony recorded before the learned trial court has
admitted that he neither reduced the information received from
the motbir in writing and prepared any memo in pursuance of
provisions of Section 42 of the NDPS Act nor sent the same to his
superior officer, which amounts to total non-compliance of Section
42 of the NDPS Act. It is also contended that the petitioners are in
custody since their date of arrest and trial will take long time in its
conclusion. It is submitted that no other case under the NDPS Act
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has been registered against the petitioners. He thus, prays that
these applications for bail may be accepted and the petitioners
may be released on bail.
3. Per contra, learned Public Prosecutor vehemently and
fervently opposes these bail applications but fairly concedes that
no other case has been registered against the petitioners under
the NDPS Act. 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.
4. I have heard and considered the submissions advanced by
counsel for the petitioners as well as learned Public Prosecutor and
perusal the material available on record.
5. Section 37 of the NDPS Act does not create an absolute
embargo for grant of bail. Further, while considering applications
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 accuseds' 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.
6. Having regard to the totality of the facts and circumstances
of the case and considering the arguments advanced by learned
counsel for the petitioners 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 Section 42
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and Sub-Section 2 of Section 52A of the NDPS Act; samples were
not deposited within 72 hours; inventory was prepared after a
delay of nearly 37 days, absence of criminal antecedents as also
looking to the custody period of the accused-petitioners but
without making any comments on the merits/demerits of the case,
I deem it just and proper to accept these bail applications.
7. These bail applications are accordingly, allowed and it is
directed that accused-petitioners (1) Sunil S/o Mangilal
Vishnoi & (2) Kamlesh S/o Mathuralal Lodha who have been
in custody in connection with FIR No.63/2023 PS Kawai, District
Baran shall be released on bail provided that each one of them
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 they 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.
8. It is made clear that the petitioners shall not involve in
similar offence(s) during currency of bail granted by this Court. If
breach of this condition 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
DEEPA RANI -49-50
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