Rajasthan High Court - Jodhpur
Ramzan vs State Of Rajasthan on 31 May, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:23028]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 2nd Bail Application No. 2486/2023
Ramzan S/o Shri Chotu Shah, Aged About 24 Years, R/o Uparla
Bass Chang Sendra Ps Dist. Pali (Lodged In Sub Jail Shahpura)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Vijay Raj Bishnoi
Mr. B.R. Bishnoi
For Respondent(s) : Mr. Arun Kumar, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order
ORDER PRONOUNCED ON ::: 31/05/2024
ORDER RESERVED ON ::: 18/03/2024
BY THE COURT:-
1. The jurisdiction of this court has been invoked by way of
filing the instant applications under Section 439 CrPC at the
instance of accused-petitioners. The requisite details of the matter
are tabulated herein below:
S.No. Particulars of the Case
2. Concerned Police Station Jahajpura
3. District Bhilwara
4. Offences alleged in the FIR Section 8/15 of the NDPS
Act
5. Offences added, if any Section 8/29 of the NDPS
Act
6. Date of passing of impugned 27.01.2023
order
[2024:RJ-JD:23028] (2 of 8) [CRLMB-2486/2023]
2. The first bail application of petitioner being SBCRLMB
No.15811/2022 was dismissed as not pressed vide order dated
27.08.2021 Hence, the instant bail applications.
3. Briefly stated the facts of the case are that on 18.09.2020
SHO Harish Sankha submitted a Parcha Kayami to the effect that
upon during nakabandi he alongwith his team intercepted a White
TAVERA Car being registration No.RJ23-TA-1060 whereupon the
driver of the vehicle Lobhichand and accused Ramzan were tried
to escape but apprehended. They were interrogated by the SHO
and they disclosed that the vehicle was being driven by
Lobhichand whereas the another person sitting by the side of
the driver was Ramzan. During search of the vehicle, poppy husk
weighing total 10 plastic bags were recovered from their
possession. Whereafter the accused were taken into custody. The
Seizing Officer took samples at the spot and marked them as ' क-1'
To 'क-10' from the recovered contraband and sent the same to
the FSL for its chemical examination. After usual investigation, a
case under Section 8/15 of the NDPS Act has been filed.
4. It is contended on behalf of the accused-petitioner that no
case for the alleged offences is made out against them 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 18.09.2020 and since then he is behind the bars. Now,
more than three and half years have elapsed but the trial is not
going to be culminated and still it seems that a further long time
[2024:RJ-JD:23028] (3 of 8) [CRLMB-2486/2023]
shall be taken in conclusion of the same, thus, he 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 challan papers and the other
material available on record.
7. Perusal of the material available on record revealing that on
18.09.2020 SHO Harish Sankha and his team intercepted a
vehicle and recovered 10 plastic bags from it and driver of the
vehicle Lobhichand and Ramzan were apprehended. The Seizing
Officer took samples at the spot and marked them as ' क-1' To 'क-
10' from the recovered contraband and sent the same to the FSL
for its chemical examination.
8. It is an admitted situation that the samples which were
taken by the Seizing Officer from the spot on 18.09.2020, were
sent to the FSL for chemical examination, which 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.
9. 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
[2024:RJ-JD:23028] (4 of 8) [CRLMB-2486/2023]
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 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 18.09.2020, and Section 52-A of NDPS Act has not
been complied with after the seizure of the contraband and no
samples drawn in the presence of magistrate were sent for
scientific 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
[2024:RJ-JD:23028] (5 of 8) [CRLMB-2486/2023]
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 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
[2024:RJ-JD:23028] (6 of 8) [CRLMB-2486/2023]
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
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 two and half years of
[2024:RJ-JD:23028] (7 of 8) [CRLMB-2486/2023]
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 they are not guilty of
the alleged crime but for the limited purpose for the justifiable
disposal of the bail applications, 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 are 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.
14. Accordingly, the instant second bail application under Section
439 Cr.P.C. is allowed and it is ordered that the accused-
petitioners shall be enlarged on bail provided he 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
[2024:RJ-JD:23028] (8 of 8) [CRLMB-2486/2023]
his appearance before the court concerned on all the dates of
hearing as and when called upon to do so.
(FARJAND ALI),J
1-Mamta/-
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