Rajasthan High Court - Jodhpur
Simran vs State Of Rajasthan (2024:Rj-Jd:43180) on 21 October, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:43180]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 2nd Bail Application No. 13281/2024
Simran D/o Shri Gurjinder Kumar, Aged About 23 Years, R/o
House No 16 Street No 10, Near Stiya Farm,police Chowki, Dist
Sriganganagar. (At Present Lodged In Central Jail Sriganganagr)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. D.S. Thind
Ms. Sonika
For Respondent(s) : Mr. Rajesh Bhati, AGA
Mr. Ravindra Bhati, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
21/10/2024
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-petitioner. The requisite details of the
matter are tabulated herein below:
S.No. Particulars of the Case
2. Concerned Police Station Chunawadh
3. District Ganganagar
4. Offences alleged in the FIR Section 8/22 of the NDPS
Act
5. Offences added, if any Section 8/22 r.w. Section
29 of the NDPS Act
6. Date of passing of impugned 26.09.2024
order
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2. The first bail application of petitioner came to be dismissed
of by this Court vide order dated 27.02.2024 passed in SBCRLMB
No.4017/2023. Hence, the instant bail application.
3. Briefly stated the facts of the case are that on 13.09.2021,
when the SHO P.S. Chunawadh, District Sri Ganganagar along with
him team while on patrolling duty reached near the three way, on
seeing them, a man and woman sitting on the Activa bearing
registration No.RJ13 SQ8208 and a person sitting on Motorcycle
bearing registration No.RJ13 SD1748 tried to fled away from the
spot but all were apprehended, the persons sitting on Activa
disclosed their names as Sumit & Simran and the rider of the
Motorcycle disclosed his name as Karam Singh. Upon suspicion, a
search was made wherein 18 boxes carrying 360 strips (in all
3600 Tablets) of Tramadol Prolonged release Tablets IP Tramwedi
SR 100 (1440 grams in weight) were recovered from a bag
carried on Activa and during search of Motorcycle, a black
ploythene bag containing seven boxes of 140 strips containing
1400 Tramadol prolonged release Tablets IP Tramwel SR 100 (560
grams in weight) were recovered from the handle of the vehicle.
Upon interrogation, it was disclosed that the recovered contraband
was purchased by them from one Lakhvindra Singh @ Lakha, R/o
Setiya Farm. After search and seizure, the Investigating Officer
seized the medicinal drugs, took the samples from it and sent the
same for its chemical examination; the accused persons were
arrested and a case under Sections 8/22 and 29 were registered
against them.
[2024:RJ-JD:43180] (3 of 14) [CRLMB-13281/2024]
4. It is contended on behalf of the accused-petitioner that no
case for the alleged offences is made out against her and her
incarceration is not warranted. The petitioner is behind the bars
since 13.09.2021. There are no factors at play in the case at hand
that may work against grant of bail to the accused-petitioner and
she has been made an accused based on conjectures and
surmises.
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. I have heard and considered the submissions made by both
the parties and have perused the material available on record.
7. It is revealing from the record that the petitioner is behind
the bars in this case since 13.09.2021 in connection with
recovery of 18 boxes carrying 360 strips (in all 3600 Tablets) of
Tramadol Prolonged release Tablets IP Tramwedi SR 100 (1440
grams in weight) which was recovered from a bag carried on
Activa. After usual investigation, the Investigating Officer took
samples and sent them to the FSL for its chemical examination.
The co-accused Lakhvindra Singh @ Lakha and Karan Singh have
already been enlarged on bail by this court vide order dated
24.09.2024 & 16.10.2024 passed in SBCRLM2ndB Nos.8768/2024
& 8767/2024.
8. It is an admitted situation that the samples which were taken
by the Seizing Officer from the spot on 13.09.2021 were sent to
the FSL for chemical examination but the same were not taken in
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the presence of the 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 her
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 her liberty.
9. 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
classified based on physical properties and results of
the drug detection kit, if any, and shall be weighed
separately.
[2024:RJ-JD:43180] (5 of 14) [CRLMB-13281/2024]
(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.
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
[2024:RJ-JD:43180] (6 of 14) [CRLMB-13281/2024]
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-z
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
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
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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.
10. 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.
11. 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
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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."
12. In this instant matter too, the alleged contraband was
seized on 13.09.2021, 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.
13. 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 and in the instant case
the petitioner is behind the bar since 13.09.2021 and uptil now,
out of total 20 witnesses only ten witnesses could have been
examined and it will surely take a further long time in concluding
the trial. 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
[2024:RJ-JD:43180] (9 of 14) [CRLMB-13281/2024]
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.
14. 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
time of conclusion then instead of giving a definite opinion that he
is not guilty of the offence, it would be suffice to say that if the
bail application is allowed by giving reasons regarding observance
[2024:RJ-JD:43180] (10 of 14) [CRLMB-13281/2024]
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
classification of offences under Special Acts (NDPS Act,
etc.), which apply over and above the ordinary bail
[2024:RJ-JD:43180] (11 of 14) [CRLMB-13281/2024]
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)
15. At the stage of hearing of a bail plea pending trial, although
this Court is not supposed to make any definite opinion or
[2024:RJ-JD:43180] (12 of 14) [CRLMB-13281/2024]
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 more than 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 consonance with the statutory stipulations, the personal
liberty of an individual can not encroached upon by keeping her
behind the bars for an indefinite period of time pending trial.
Thus, in the peculiar circumstances of this case, I am of this view
[2024:RJ-JD:43180] (13 of 14) [CRLMB-13281/2024]
that the embargo contained under Section 37 of the NDPS Act
would not come into the way of granting bail.
16. 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.
17. Considering the fact that the petitioner is a female and there
is a special provision for the female accused under Section 437
Cr.P.C. for leniency in granting bail to her. In the case titled as
Sangeeta Vs. State of Rajasthan in S.B. Criminal Misc. Bail
Application No.1102/2024 decided on 05.03.2024, this Court
has passed an order granting bail in relation to releasing a female
on bail while considering the provision 437 Cr.P.C. Further the fact
that she is behind the bar for more than three years and the fact
that out of total projected 14 witnesses, few of them are yet to be
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
fact that petitioner is in custody for more than three years
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.
[2024:RJ-JD:43180] (14 of 14) [CRLMB-13281/2024]
18. Accordingly, the instant second bail application under Section
439 Cr.P.C. is allowed and it is ordered that the accused-petitioner
shall be enlarged on bail provided she 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 her appearance
before the court concerned on all the dates of hearing as and
when called upon to do so.
(FARJAND ALI),J
208-Mamta/-
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