Rajasthan High Court - Jodhpur
Bajrang vs State Of Rajasthan (2024:Rj-Jd:42026) on 9 October, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:42026]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous IInd Bail Application No. 8515/2024
Jagdish S/o Panna Ram, Aged About 35 Years, R/o Raisar, Tehsil
Nokha, District Bikaner (Raj) (Presently Lodged In Sub Jail
Nokha, District Bikaner)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
Connected With
S.B. Criminal Miscellaneous Bail Application No. 5770/2024
Bajrang S/o Jagdish, Aged About 24 Years, R/o Bandhala, Tehsil
Nokha, Distt Bikaner Raj. (Lodged In Distt Jail, Bikaner)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Ashok Khilery
Mr. Bhagirath Bishnoi
For Respondent(s) : Mr. N.K. Gurjar, AAG asst. by
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 second bail application 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 Nokha
3. District Bikaner
[2024:RJ-JD:42026] (2 of 14) [CRLMB-8515/2024]
4. Offences alleged in the FIR Sections 8/15 and 25 of
the NDPS Act
5. Offences added, if any Section 8/29 of the NDPS
nd
(S.B. Crl Misc. II Bail Act
Application No.5770/2024)
6. Date of passing of impugned 15.09.2023
order
(S.B. Crl Misc. IInd Bail
Application No.8515/2024)
7. Date of passing of impugned 03.05.2024
order
(S.B. Crl Misc. IInd Bail
Application No.5770/2024)
2. In nutshell the facts of the case are that on 02.08.2023 Shri
Gopi Ram Sub- Inspector, PS Nokha, Bikaner along with his
team during patrolling, tried to intercept the camper vehicle
but upon seeing the police party, the driver of the camper
immediately halted the vehicle and attempted to reverse
direction. Due to suspicious behavior, the police team
pursued the camper using a private vehicle and apprehended
the driver. When questioned about his identity, the driver
identified himself as Jagdish s/o Panna Ram Bishnoi R/o
Raisar. Upon searching the camper vehicle, police recovered
four plastic bags containing a total of 64 kg 310 grams of
poppy husk. Subsequently, the petitioner Jagdish was
arrested, and a case was registered against him under
Sections 8/15 and 25 of the NDPS Act. During police
interrogation, accused Jagdish revealed that the poppy husk
was supplied to him by Bajran Bishnoi at the at his house
about 7-8 days ago. Following this disclosure, the co-accused
Bajran Bishnoi was arrested on 30.04.2024, and he too was
charged under Sections 8/15 and 25 of the NDPS Act."
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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 Advocate General 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.
6. The vehicle was intercepted on 02.08.2023. The police team
of Police Station Nokha, District Bikaner seized the vehicle in
the presence of the petitioner Jagdish, in which 64 kg 310
gm poppy husk was found from four plastic bags. The
contraband was seized. The accused Jagdish was arrested on
2.08.2023 as well as the accused Bajrang Bishnoi was
arrested on 30.04.2024 and since then they are in judicial
custody, thus, this Court feel persuaded to hear the bail
application on merits.
7. After search and seizure, the petitioners were arrested on
2.08.2023 and 30.04.2024 respectively thereafter the
articles which were seized at the spot were marked as 'A', 'B',
[2024:RJ-JD:42026] (4 of 14) [CRLMB-8515/2024]
'C' and 'D'. 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:-
3. Classification of seized material. -
(1) The narcotic drugs, psychotropic substances and
controlled substances seized under the Act shall be
[2024:RJ-JD:42026] (5 of 14) [CRLMB-8515/2024]
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.
(5) The detailed inventory of the packages, containers,
conveyances and other seized articles shall be prepared
and attached to the panchnama.
4. ........
5. ........
6. .........
[2024:RJ-JD:42026] (6 of 14) [CRLMB-8515/2024]
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.
(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
[2024:RJ-JD:42026] (7 of 14) [CRLMB-8515/2024]
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 not be a serious
question of law as to whether the FSL report of the samples
taken from the spot and would be taken 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 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
[2024:RJ-JD:42026] (8 of 14) [CRLMB-8515/2024]
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 02.08.2023, 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
prosecution to substantiate the charge as is not desirable
[2024:RJ-JD:42026] (9 of 14) [CRLMB-8515/2024]
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
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 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
[2024:RJ-JD:42026] (10 of 14) [CRLMB-8515/2024]
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
[2024:RJ-JD:42026] (11 of 14) [CRLMB-8515/2024]
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 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
[2024:RJ-JD:42026] (12 of 14) [CRLMB-8515/2024]
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)
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, incarceration of around 14 months
and 6 months respectively of the petitioners 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
[2024:RJ-JD:42026] (13 of 14) [CRLMB-8515/2024]
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 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 it can be speculated that a further more time will be
consumed in reaching to the conclusion of the trial and
looking to the 17 months' custody of the petitioners 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
[2024:RJ-JD:42026] (14 of 14) [CRLMB-8515/2024]
deemed suitable to grant the benefit of bail to the
petitioners in the present matter.
17. Accordingly, the instant 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
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 their appearance before the Court
concerned on all the dates of hearing as and when called
upon to do so.
(FARJAND ALI),J
60-61-Ashutosh/-
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