Rajasthan High Court - Jodhpur

Suresh Kumar vs State Of Rajasthan (2024:Rj-Jd:41264) on 8 October, 2024

Author: Farjand Ali

Bench: Farjand Ali

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          HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
     S.B. Criminal Miscellaneous IV Bail Application No. 12660/2024

 Suresh Kumar S/o Asu Ram, Aged About 23 Years, R/o Vada
 Bhadvi, Ps Bagora, Dist. Jalore, Raj. (Lodged In Central Jail
 Bikaner)
                                                                      ----Petitioner
                                       Versus
 State Of Rajasthan, Through Pp
                                                                    ----Respondent


For Petitioner(s)            :     Mr. Manohar Singh
                                   Mr. Sadam
For Respondent(s)            :     Mr. Rajesh Bhati, AGA
                                   Mr. Ravindra Singh, AGA


                   HON'BLE MR. JUSTICE FARJAND ALI

Order

08/10/2024

1. The jurisdiction of this court has been invoked by way of

filing the instant 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                  Naal
     3.      District                                  Bikaner
     4.      Offences alleged in the FIR               Sections 8/22 and 25 of
                                                       the NDPS Act
     5.      Offences added, if any                    -
     6.      Date of passing of impugned -
             order

2. 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

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accused-petitioner and he has been made an accused based

on conjectures and surmises.

3. 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.

4. I have considered the submissions made by both the parties

and have perused the material available on record.

5. Three bail applications of the petitioner have been rejected by

this Court vide orders dated 21.12.2022, 17.07.2023 &

05.07.2024 in CRLMB Nos. 16686/2021, 2487/2023 &

3830/2024 respectively. The petitioner is behind the bars

since 29.05.2021. Co-accused of this case Gopi Lal has

already been enlarged on bail by this Court vide order dated

27.08.2024 in CRLMB No.7645/2023. The relevant portion of

the said bail is reproduced hereinbelow:-

6. Perusal of the record revealing that on 29.05.2021, Vikram Singh Charan, SHO PS Naal District Bikaner on receiving a secret information during nakabandi he alongwith a team intercepted a Vehicle bearing registration No.GJ05 JK3274. Upon interrogation, the driver of the vehicle disclosed his name as Gopilal and the person sitting behind the driver seat stated his name as Suresh. When search was made, 54 boxes containing 27000 tablets of NRx Tramadol Hydrochloride Tablets 100 mg Calviidol-100 SR Tablets (9 Kg 180 grams) were recovered. The petitioner was arrested and since then he is in custody. Till date, out of 12 witnesses only statements of two Prosecution Witnesses i.e. complainant and Seizing Officer have been recorded in the trial. It is further noticed that except the present one, no other case

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has been registered against the accused. Of course, there is a fetter under Section 37 of the NDPS Act regarding grant of bail to an accused having illegal possession of commercial quantity of contraband but a fundamental right of speedy trial to him cannot be permitted to be flouted. When there appears conflict between the statutory provision and the fundamental right then this Court is of the view that a protection of fundamental right should be given preference over the statutory bar in granting bail. 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.

7. Perusal of the statement of P.W. 2 Vikram Singh revealing that the samples sent to the FSL for detection of contraband were neither taken nor marked in the presence of Magistrate. Not making inventory in accordance with 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 is a serious question which if decided in favour of the accused, then his conviction cannot be made. 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.

8. 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."

9. In this instant matter too, the alleged contraband was seized on 29.10.2021, 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.

10. 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

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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 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 the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the

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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."

(Emphasis Supplied)

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11. 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, around three 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 (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. 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.

6. In view of the above and on the ground of parity as well as

considering the fact that there is high probability that the trial

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may take long time to conclude, it is deemed suitable to

grant the benefit of bail to the petitioner in the present

matter.

7. 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 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