Rajasthan High Court - Jodhpur
Mukesh vs State Of Rajasthan (2024:Rj-Jd:37977) on 12 September, 2024
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2024:RJ-JD:37977]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. 3rd Bail Application No. 11145/2024
Mukesh S/o Chotu Rebari, Aged About 26 Years, R/o Near
Ganesh Mandir Khoda Ganesh, Ps Gegal, Dist. Ajmer. (Lodged In
Dist. Jail, Chittorgarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. R.K. Charan
For Respondent(s) : Mr. Surendra Bishnoi, PP
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order
12/09/2024
The present third bail application has been filed under
Section 439 Cr.P.C. on behalf of the petitioner, who is in judicial
custody in connection with F.I.R. No.55/2022 registered at Police
Station Chanderia, District Chittorgarh registered for the offence
punishable under Section 8/15 of NDPS Act.
The second bail application has been dismissed as not
pressed by this Court vider order dated 08.02.2024 with liberty to
file afresh after recording the statement of Seizure Officer-cum-
Investigating Officer.
Learned counsel for the petitioner submits that the petitioner
is in judicial custody since 11.03.2022. The recovery of
contraband was made on 11.03.2022 and the samples were sent
for FSL on 15.03.2022, but inventory was prepared on 08.04.2022
before the Magistrate in this case. Counsel further submits it is
clear cut violation of provisions of Section 52(A) of NDPS Act. He
[2024:RJ-JD:37977] (2 of 4) [CRLMB-11145/2024]
relied upon the judgment of the Hon'ble Supreme Court in the
case of Union of India Vs. Mohanlal & Anr [AIR Online 2016
SC 606]. In the said judgment, the Hon'ble Supreme Court has
held as under:
"It is manifest from Section 52A (2)(c) (supra) that
upon seizure of the contraband the same has to be
forwarded either to the officer in-charge of the nearest
police station or to the officer empowered under
Section 53 who shall prepare an inventory as stipulated
in the said provision and make an application to the
Magistrate for purposes of (a) certifying the correctness
of the inventory (b) certifying photographs of such
drugs or substances taken before the Magistrate as
true and (c) to draw representative samples in the
presence of the Magistrate and certifying the
correctness of the list of samples so drawn. Sub-section
(3) of Section 52- A requires that the Magistrate shall
as soon as may be allow the application. This implies
that no sooner the seizure is effected and the
contraband forwarded to the officer in charge of the
Police Station or the officer empowered, the officer
concerned is in law duty bound to approach the
Magistrate for the purposes mentioned above including
grant of permission to draw representative samples in
his presence, which samples will then be enlisted and
the correctness of the list of samples so drawn certified
by the Magistrate. In other words, the process of
drawing of samples has to be in the presence and
under the supervision of the Magistrate and the entire
exercise has to be certified by him to be correct. The
question of drawing of samples at the time of seizure
which, more often than not, takes place in the absence
of the Magistrate does not in the above scheme of
things arise. This is so especially when according to
Section 52-A(4) of the Act, samples drawn and certified
by the Magistrate in compliance with sub-section (2)
and (3) of Section 52-A above constitute primary
evidence for the purpose of the trial. Suffice it to say
that there is no provision in the Act that mandates
taking of samples at the time of seizure. That is
perhaps why none of the States claim to be taking
samples at the time of seizure. Be that as it may, a
conflict between the statutory provision governing
taking of samples and the standing order issued by the
Central Government is evident when the two are placed
in juxtaposition. There is no gainsaid that such a
conflict shall have to be resolved in favour of the
statute on first principles of interpretation but the
continuance of the statutory notification in its present
[2024:RJ-JD:37977] (3 of 4) [CRLMB-11145/2024]
form is bound to create confusion in the minds of the
authorities concerned instead of helping them in the
discharge of their duties. The Central Government
would, therefore, do well, to re-examine the matter
and take suitable steps in the above direction".
Counsel has also relied upon the decision of Hon'ble
Supreme Court in the case of Mohammad Khalid and Anr. Vs.
State of Telangana, Criminal Appeal No.1610/2023,
decided on 01.03.2024. The relevant para is as under:
"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. The
accused A-3 and A-4 were not arrested at the spot. The
offence under Section 20(b)(ii)(c) deals with
production, manufacture, possession, sale, purchase,
transport, import or export of cannabis. It is not the
case of the prosecution that the accused A-3 and A-4
were found in possession of ganja. The highest case of
the prosecution which too is not substantiated by any
admissible or tangible evidence is that these two
accused had conspired sale / purchase of ganja with A-
1 and A-2. The entire case of the prosecution as against
these two accused is based on the interrogation notes
A-1 and A-2".
Learned Public Prosecutor has opposed the prayer for bail.
I have considered the arguments advanced before me and
gone through the material available on record.
Having regard to the totality of the facts and circumstances
of the case, without expressing any opinion on the merits of the
case, I deem it just and proper to grant bail to the accused
petitioner under Section 439 Cr.P.C.
Accordingly, the third bail application filed under Section 439
Cr.P.C. is allowed and it is directed that petitioner - Mukesh S/o
Chotu Rebari shall be released on bail in connection with F.I.R.
[2024:RJ-JD:37977] (4 of 4) [CRLMB-11145/2024]
No.55/2022 registered at Police Station Chanderia, District
Chittorgarh provided he executes a personal bond in a sum of
Rs.2,00,000/- with two sureties of Rs.1,00,000/- each to the
satisfaction of learned trial court for his appearance before that
court on each and every date of hearing and whenever called upon
to do so till the completion of the trial.
(MANOJ KUMAR GARG),J
60-Rashi/-
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