Rajasthan High Court - Jodhpur
Sucha Singh vs State Of Rajasthan (2024:Rj-Jd:24443) on 28 May, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:24443]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 4820/2024
Sucha Singh S/o Major Singh, Aged About 25 Years, R/o 15 Fi-
Ward No. 6 Matili Rathan Tehsil And Dist. Sri Ganganagar.
(Presently Lodged In Central Jail, Sri Ganganagar)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. R.S. Gil
For Respondent(s) : Mr. S.K. Bhati, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order
28/05/2024
1. The jurisdiction of this court has been invoked by way of
filing an application under Section 439 CrPC at the instance of
accused-petitioner. The requisite details of the matter are
tabulated herein below:
S.No. Particulars of the Case
2. Concerned Police Station Sadar Ganganagar
3. District Ganganagar
4. Offences alleged in the FIR Section 8/22 of the NDPS
Act
5. Offences added, if any Section 8/29 of the NDPS
Act
6. Date of passing of impugned 04.04.2024
order
2. Briefly stated the facts of the case are that on 23.07.2020,
during nakabandi, Sandeep Kumar, SHO of Police Station Sadar,
District Sri Ganganagar and his team upon information received
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from a constable and the officer of the BSF, when his team
reached near Chak 6Y, they found a boy was sitting on the
motorcycle and upon seeing them, tried to escape good but was
apprehended and upon asking, he disclosed his name to be
Succha Singh. Upon making search, 100 boxes of 25-25 strip each
in all 25,000 tablets of Tramadol Hydrochloride 100 mg and 99
boxes of 25-25 strip each in all 24,750 tablets of Tramadol
Hydrochloride 100 mg were recovered two bags. The total weight
of these tablets was 24 Kg. 850 gms the samples were taken from
the seized contraband for sending the same to the FSL for its
examination. The accused was taken into custody. After usual
investigation, a case under Sections 8/22 & 8/29 of the NDPS Act
has been registered.
3. It is contended on behalf of the accused-petitioner that no
case for the alleged offences is made out against him and his
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-
petitioner and he has been made an accused based on conjectures
and surmises. He further submits that the accused was taken into
custody on 23.07.2020 and since then he is behind the bars; now
around four years have lapsed but the trial is not going to be
culminated, out of total 24 witnesses only 6 could have been
examined uptill now, still it seems that a further long time shall be
taken in conclusion of the same, thus, he may be enlarged on bail.
4. Contrary to the submissions of learned counsel for the
petitioner, learned Public Prosecutor opposes the bail application
[2024:RJ-JD:24443] (3 of 7) [CRLMB-4820/2024]
and submits that the present case is not fit for enlargement of
accused on bail.
5. Have heard and considered the submissions made by both
the parties and have perused the material available on record
including medical prescriptions and reports of the petitioner.
6. Perusal of the material available on record revealing that on
23.07.2020, during nakabandi, Sandeep Kumar, SHO of Police
Station Sadar, District Sri Ganganagar recovered huge quantity of
tablets of Tramadol Hydrochloride. Thereafter, he took samples
from the contraband and sent the same to the FSL for its
chemical examination.
7. It is an admitted situation that the samples which were
taken by the Seizing Officer from the spot on 23.07.2020 were
sent to the FSL for chemical examination but the same were not
taken in the presence of the Magistrate. Apparently, the
guidelines issued by 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. In
this view of the matter it can be said that the samples sent to the
FSL and the report of the FSL in this regard 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
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samples as per Section 52-A of NDPS Act, thus, the FSL was
considered to be waste 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."
8. Besides the above, it is also contended that the petitioner is
suffering from tuberculosis and pulmonary disease. The said fact
has been verified from the record of the jail authorities as also
from the discharge summary and other prescription slips and
reports.
9. Hon'ble the Supreme Court has propounded guidelines on
the subject of bail in the case of Satender Kumar Antil (supra)
and has held as under:-
"41. Sub-section (2) has to be read along with Sub-section (1). The
proviso to Sub-section (2) restricts the period of remand to a maximum
of 15 days at a time. The second proviso prohibits an adjournment
when the witnesses are in attendance except for special reasons, which
are to be recorded. Certain reasons for seeking adjournment are held
to be permissible. One must read this provision from the point of view
of the dispensation of justice. After all, right to a fair and speedy trial
is yet another facet of Article 21. Therefore, while it is expected of the
court to comply with Section 309 of the Code to the extent possible, an
unexplained, avoidable and prolonged delay in concluding a trial,
appeal or revision would certainly be a factor for the consideration
of bail. This we hold so notwithstanding the beneficial provision
Under Section 436A of the Code which stands on a different footing.
42. ......
[2024:RJ-JD:24443] (5 of 7) [CRLMB-4820/2024]
43. A suspension of sentence is an act of keeping the sentence in
abeyance, pending the final adjudication. Though delay in taking up
the main appeal would certainly be a factor and the benefit available
Under Section 436A would also be considered, the Courts will have to
see the relevant factors including the conviction rendered by the trial
court. When it is so apparent that the appeals are not likely to be taken
up and disposed of, then the delay would certainly be a factor in
favour of the Appellant.
44. Thus, we hold that the delay in taking up the main appeal or
revision coupled with the benefit conferred Under Section 436A of the
Code among other factors ought to be considered for a favourable
release on bail."
(Emphasis Supplied)
10. 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 two and half 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 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, 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.
[2024:RJ-JD:24443] (6 of 7) [CRLMB-4820/2024]
11. Further, this Court feels that an under trial prisoner should
not be kept confined for an indefinite period for no fault of them
in impeding the course of trial. A perusal of the material revealing
that the trial had been commenced in this matter in the year
2020 but owing to one or the other reason, the recording of the
prosecution witnesses could not be completed. It is transpiring
that most of the witnesses are yet to be examined. This Court
feels that looking to the snail's pace progress of the trial, it
would still take a long time to reach onto a legitimate conclusion.
It is also noticed that sincere endeavors have not been made by
the trial Court in proceeding with the trial to get an early
culmination of the same.
12. Though specific arguments have not been conveyed but
looking to the fact that the accused is in custody since the year
2020, 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 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.
13. Accordingly, the instant bail application under Section 439
Cr.P.C. is allowed and it is ordered that the accused-petitioner as
named in the cause title shall be enlarged on bail provided he
[2024:RJ-JD:24443] (7 of 7) [CRLMB-4820/2024]
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 his appearance before the court concerned on all the
dates of hearing as and when called upon to do so.
(FARJAND ALI),J
20-Mamta/-
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