Rajasthan High Court - Jodhpur
Bhanwar Lal vs State Of Rajasthan (2024:Rj-Jd:41877) on 9 October, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:41877]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous IIIrd Bail Application No. 12037/2024
Bheru Lal S/o Mangi Lal Salvi, Aged About 41 Years, R/o Kannoj,
P.S. Bhadesar, Dist. Chittorgarh, Raj. (Lodged In Dist. Jail,
Chittorgarh)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
Connected With
S.B. Criminal Miscellaneous Bail Application No. 10847/2024
Bhanwar Lal S/o Kalu Lal Mali, Aged About 44 Years, R/o Kannoj,
Thana Bhadesar, Dist. Chittorgarh, Raj. (Lodged In Dist. Jail
Chittorgarh)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. B.R. Bishnoi
Mr. Shekhar Mewara
Mr. Manish Bohra
Mr. Karmendra Singh
For Respondent(s) : Mr. Rajesh Bhati, AGA
Mr. Ravindra Singh Bhati, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
09/10/2024
1. The jurisdiction of this Court has been invoked by way of
filing an instant third bail 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 Sadar Chittorgarh
3. District Chittorgarh
4. Offences alleged in the FIR Section 8/15 of the NDPS
Act
5. Offences added, if any --
[2024:RJ-JD:41877] (2 of 10) [CRLMB-12037/2024]
2. The previous two bail applications has been rejected by this
Court. The first bail application was dismissed vide order
dated 24.08.2023 passed in SBCRLMB No.9590/2023 and
SBCRLMB No.4542/2023 with liberty to file afresh after
statement of Seizing Officer. The second bail application of
petitioners came to be disposed of by this Court vide order
dated 09.04.2024 passed in SBCRLMB No.2389/2024 and
SBCRLMB No.1414/2024 with liberty to renew the prayer for
bail in the month of July, 2024 with better particulars. Now,
the statement of the Seizing Officer has been completed as
PW-2. Hence, the instant third bail application.
3. It is contended on behalf of the accused-petitioners that no
case for the alleged offences is made out against them and
their incarceration is not warranted. If the seizure of the
contraband is not made as per the legal provision then the
embargo contained under Section 37 of the NDPS Act is not
applicable. There are no factors at play in the case at hand
that may work against grant of bail to the accused-
petitioners and they have been made an accused based on
conjectures and surmises.
4. Contrary to the submissions of learned counsel for the
petitioners, learned Additional Government Advocate
opposes the bail application and submits that the present
case is not fit for enlargement of accused on bail.
5. I have considered the submissions made by both the parties
and have perused the material available on record.
[2024:RJ-JD:41877] (3 of 10) [CRLMB-12037/2024]
6. The vehicle was intercepted on 27.11.2021. The police team
of Police Station Sadar Chittorgarh seized the vehicle (Eicher
Truck) bearing No.RJ-09-GD-0445 in which 487 kg 600 gm
poppy husk was found. The contraband was seized. They
were arrested on 27.11.2021 and since then they are in
judicial custody. There are total 25 witnesses, out of which 6
has been examined till now and 3 years have been elapsed,
thus, this Court feel persuaded to hear the bail application on
merits.
7. Prima facie, it is revealing that the seizure had not been
made in accordance with the provision contained under
Section 52-A of the NDPS Act and the standing order
Nos.1/1988 & 1/1989 issued by the Government of India.
The samples were taken by Seizing Officer at the spot whilst
as per the provision, the samples were supposed to be taken
in the presence of a Magistrate while making inventory.
Admittedly, the samples taken at the spot were sent to the
FSL and no samples were collected during inventory before a
Magistrate. 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
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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. There is a
blatant non-compliance of Section 52-A.
8. 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 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."
9. In this instant matter too, the alleged contraband was
seized on 27.11.2021, 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
[2024:RJ-JD:41877] (5 of 10) [CRLMB-12037/2024]
sent for scientific investigation, thus, the requisite
compliance of Section 52-A of NDPS Act has not been made.
10. 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
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.
11. This Court feels that though there is embargo contained
under Section 37 of the NDPS Act regarding grant of bail in
[2024:RJ-JD:41877] (6 of 10) [CRLMB-12037/2024]
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
petitioners are 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 them. 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 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
[2024:RJ-JD:41877] (7 of 10) [CRLMB-12037/2024]
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
[2024:RJ-JD:41877] (8 of 10) [CRLMB-12037/2024]
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)
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
[2024:RJ-JD:41877] (9 of 10) [CRLMB-12037/2024]
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, 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 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 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
[2024:RJ-JD:41877] (10 of 10) [CRLMB-12037/2024]
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.
14. Considering the overall facts and circumstances of the case
and the fact that out of total 25 witnesses till date only six
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 petitioners pending trial, it is felt
appropriate to accept the third 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 petitioners in the present matter.
15. Accordingly, the instant third bail applications under Section
439 Cr.P.C. are allowed and it is ordered that the accused-
petitioners shall be enlarged on bail provided each of them
furnish 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 their appearance before the court
concerned on all the dates of hearing as and when called
upon to do so.
(FARJAND ALI),J
71-72-Ashutosh/-
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