Rajasthan High Court - Jodhpur
Bhagwati Lal vs State Of Rajasthan (2024:Rj-Jd:41294) on 8 October, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:41294]
`HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 3rd Bail Application No. 11602/2024
Bhagwati Lal S/o Chagan Lal Sharma, Aged About 34 Years, R/o
Village Arned, Teh. Dungala, Dist. Chittorgarh, Raj. (Lodged In
Dist. Jail Chittorgarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Dr. Sachin Acharya Sr. Advocate
assisted by Mr. Shekhar Mewara
For Respondent(s) : Mr. N.K. Gurjar, AAG assisted by
Mr. Rajesh Bhati, AGA
Mr. Ravindra Bhati, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
08/10/2024
1. The jurisdiction of this court has been invoked by way of
filing an instant third bail 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 Dungla
3. District Chittorgarh
4. Offences alleged in the FIR Section 8/15 of the NDPS
Act
5. Offences added, if any -
6. Date of passing of impugned 29.08.2024
order
2. The first and second bail applications filed on behalf of the
petitioner came to be dismissed as not pressed by this Court vide
[2024:RJ-JD:41294] (2 of 13) [CRLMB-11602/2024]
order dated 12.01.2024 & 14.02.2024 passed in SBCRLMB
No.13017/2023 & 1296/2024. While rejecting the second bail
application, a liberty was afforded to the petitioner to renew the
prayer for bail after the statement of Seizing Officer is recorded
but till now not a single witness has been examined in the trial.
Hence, the instant bail application.
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.
4. 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.
5. Have considered the submissions made by both the parties
and have perused the material available on record.
6. Perusal of the record revealing that the petitioner is behind
the bars for more than one year. It is the case of the prosecution
that on 22.08.2023 SHO Dungla alongwith his team during
patrolling found a Swift Desire Car bearing registration No.RJ27
TA8371 lying in an abandoned condition. Upon suspicion, search
was conducted and four bags of poppy husk weighing 60.100 Kg
and an AADHAR Card of the petitioner from the dickey of
dashboard were recovered. On the basis of Engine and Chasis
number present petitioner has been booked as an accused and a
[2024:RJ-JD:41294] (3 of 13) [CRLMB-11602/2024]
case under Section 8/18 of the NPDS Act got registered against
him.
7. After search and seizure, the articles which were seized at
the spot were marked and the same were sent to the FSL for its
examination. No inventory was prepared and verified in the
presence of the Magistrate as per the provision of Section 52A of
the NDPS Act and the samples so verified were not sent for
scientific investigation. As per the mandate of law, the samples
taken in the presence of a Magistrate should be sent to the
Forensic Laboratory. Not making inventory in accordance with the
guidelines issued by the Government issued vide Standings Order
Nos.1/1988 & 1/1989 as well as the mandate of law contained
under Section 52-A of the NDPS Act is a serious question which if
decided in favour of the accused, then his conviction won't be
possible to be made since the report of FSL regarding samples
taken at the spot by the Seizing Officer would not be sufficient.
8. It would be worthwhile to mention here that by virtue of
powers given under Section 52-A r.w. Section 76 of the NDPS Act,
the Central Govt. Department of Finance issued a Gazette
Notification dated 23.12.2022 regarding classification, seizing,
sealing, storing, taking samples of the contraband etc. called as
Narcotic Drugs and Psychotropic Substances (seizure,
search, sampling and disposal), Rules 2022 (hereinafter referred
as 'the Rules of 2022'). The said Rule came into force from
23.12.2022. It would be relevant to reproduce certain provisions,
which are as under:-
[2024:RJ-JD:41294] (4 of 13) [CRLMB-11602/2024]
3. Classification of seized material. -
(1) The narcotic drugs, psychotropic substances and
controlled substances seized under the Act shall be
classified based on physical properties and results of
the drug detection kit, if any, and shall be weighed
separately.
(2) If the narcotic drugs, psychotropic substances and
controlled substances are found in packages or
containers, such packages and containers shall be
weighed separately and serially numbered for the
purpose of identification.
(3) All narcotic drugs, psychotropic substances and
controlled substances found in loose form shall be
packed in tamper proof bag or in container, which shall
be serially numbered and weighed and the particular of
drugs and the date of seizure shall also be mentioned
on such bag or container:
Provided that bulk quantities of ganja, poppy straw
may be packed in gunny bags and sealed in such way
that it cannot be tempered with:
Provided further that seized concealing material such
as trolley bags, backpack and other seized articles shall
be sealed separately.
(4) The classification, weighing, packaging and
numbering referred to in this sub-rule shall be done in
the presence of search witnesses (Panchas) and the
person from whose possession the drugs and
substances was recovered and a mention to this effect
shall invariably be made in the panchnama drawn on
the spot of seizure.
[2024:RJ-JD:41294] (5 of 13) [CRLMB-11602/2024]
(5) The detailed inventory of the packages, containers,
conveyances and other seized articles shall be prepared
and attached to the panchnama.
6. .........
7. ........
8. Application to Magistrate. - After the seized
material under the Act is forwarded to the officer-in-
charge of the nearest police station or to the officer
empowered under section 53 of the Act or if it is seized
by such an officer himself, he shall prepare an
inventory of such material in Form-4 and apply to the
Magistrate, at the earliest, under sub-section (2) of
section 52A of the Act in Form-5.
9. Samples to be drawn in the presence of
Magistrate. - After application to the Magistrate under
sub-section (2) of section 52A of the Act is made, the
Investigating Officer shall ensure that samples of the
seized material are drawn in the presence of the
Magistrate and the same is certified by the magistrate
in accordance with the provisions of the said-sub-
section.
10. ........
11. ........
12. ........
13. Despatch of sample for testing. -
(1) The samples after being certified by the Magistrate
shall be sent directly to any one of the jurisdictional
laboratories of Central Revenue Control Laboratory,
Central Forensic Science Laboratory or State Forensic
Science Laboratory, as the case may be, for chemical
analysis without any delay.
[2024:RJ-JD:41294] (6 of 13) [CRLMB-11602/2024]
(2) The samples of seized drugs or substances shall be
despatched to the jurisdictional laboratories under the
cover of the Test Memo, which shall be prepared in
triplicate, in Form-6.
(3) The original and duplicate of the Test Memo shall
be sent to the jurisdictional laboratory alongwith the
samples and the triplicate shall be retained in the case
file of the seizing officer.
A combined reading of Rules 3, 8, 9 & 13 of the Rules of
2022 manifesting that after seizure of the contraband, the officer
has to move an application to the Magistrate and whereafter, the
samples are supposed to be taken in his presence and whereafter
the verified samples are supposed to be sent to the Forensic
Laboratory for the purpose of detection of any Narcotic Drugs and
Psychotropic Substance in the seized article. Ostensibly, no such
task has been undertaken in this case and thus, it would be a
serious question of law as to whether the FSL report of the
samples taken from the spot can be treated as a decisive piece of
evidence to substantiate the charge so as to punish him under the
NDPS Act.
9. Admittedly, in the case at hand, the samples which were
sent to the FSL were not sent after getting verification from the
Magistrate as envisaged under the Rules of 2022 aforesaid which
is direct contravention of the Rules of 2022.
10. In a recent 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
[2024:RJ-JD:41294] (7 of 13) [CRLMB-11602/2024]
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 P-11) is nothing but a waste
paper and cannot be read in evidence."
11. In this instant matter too, the alleged contraband was
seized on 22.08.2023, 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.
12. Another aspect for consideration of the bail plea would be
that this Court is of the view that for the purpose of proving
charge only a reasonable period can be granted to the prosecution
while keeping an accused behind the bars. Still the guilt is to be
proved and as per the theory of Criminal Jurisprudence, he shall
be presumed innocent until the guilt is proved. In a Sessions
case, a trial ought to have commenced and completed within a
Session i.e. one year. When some unavoidable circumstances are
considered than it can be doubled, however in any case a person
cannot be detained for the purpose of giving an opportunity to the
[2024:RJ-JD:41294] (8 of 13) [CRLMB-11602/2024]
prosecution to substantiate the charge as is not desirable under
the law. Right to have speedy trial is guaranteed by the
Constitution of India and herein this case the same has been
infringed owing to lackadaisical behavior of the prosecution party
in not presenting the witness in the trial within a reasonable
period. When there appears reasonable ground to presume that
certain infirmity or legal defect would be fatal to the prosecution
still not exercising power of granting bail would mean not honoring
the guarantee of the Constitution given to every individual
regarding protection of his liberty.
13. This Court feels that though there is embargo contained
under Section 37 of the NDPS Act regarding grant of bail in
mattes pertaining to commercial quantity and some others and
true it is that bail can only be granted when the twin conditions
mentioned in the provision are satisfied but this Court feels that
expressing final opinion to the effect that there are no reasonable
ground to believe that the petitioner is not guilty may stifle or
abort the judicial proceeding in the midway and then there would
remain nothing for the trial Court to proceed further in the matter
and as such, the moment, the bail is granted by observing the
above in clear and express terms, it would be imperative for the
trial Court to either discharge or acquit him. The continuation of
the trial whereafter would be a futile exercise at one hand and on
the other hand the same would amounts to an abuse of process
of law. This Court is of the view that pending investigation or
pending trial if a serious legal defect is observed in the case of
the prosecution, which may prove fatal to the prosecution at the
[2024:RJ-JD:41294] (9 of 13) [CRLMB-11602/2024]
time of conclusion then instead of giving a definite opinion that he
is not guilty of the offence, it would be suffice if the bail
application is allowed by giving reasons regarding observance of
legal defect only; but not by giving a final finding on that aspect.
The view of this Court is based upon the gist of the judgment
passed by Hon'ble the Supreme Court in the matter of 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 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
[2024:RJ-JD:41294] (10 of 13) [CRLMB-11602/2024]
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 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."
[2024:RJ-JD:41294] (11 of 13) [CRLMB-11602/2024]
(Emphasis Supplied)
14. 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.
15. 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 one year 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 (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 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. Though
specific arguments have not been conveyed but looking to the
[2024:RJ-JD:41294] (12 of 13) [CRLMB-11602/2024]
fact that the accused is in custody, this court feels that the
accused are not supposed to establish a case in support of their
innocence rather their 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.
Thus, in the peculiar circumstances of this case, I am of this view
that the embargo contained under Section 37 of the NDPS Act
would not come into the way of granting bail.
16. Considering the overall facts and circumstances of the case
and the fact that out of total 17 witnesses till date none of the
witnesses could have been examined and it can be speculated that
a further more time will be consumed in reaching to the
conclusion of the trial and looking to the three years custody of
the petitioner pending trial, it is felt appropriate to accept the
second bail application both on merits as well as on period of long
incarceration. In light of these facts and circumstances, it is
deemed suitable to grant the benefit of bail to the petitioner in the
present matter.
17. Accordingly, the instant third bail application under Section
439 Cr.P.C. is allowed and it is ordered that the accused-petitioner
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 his appearance
[2024:RJ-JD:41294] (13 of 13) [CRLMB-11602/2024]
before the court concerned on all the dates of hearing as and
when called upon to do so.
(FARJAND ALI),J
71-Mamta/-
Powered by TCPDF (www.tcpdf.org)
