Rajasthan High Court - Jodhpur
Manjeet Singh vs State Of Rajasthan (2024:Rj-Jd:38833) on 19 September, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:38833]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous II Bail Application No. 11751/2024
Manjeet Singh S/o Sh. Jagdish, Aged About 36 Years, R/o
Bhalaiwala, Ps Kotbhai, At Present R/o Street No. 1/4,
Banginagar Amarpura, Ps Kainal Colony, Bathina, Punjab.
(Lodged In Dist Jail Hanumangarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Navneet Poonia
For Respondent(s) : Mr. Rajesh Bhati, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
19/09/2024
1. The jurisdiction of this Court has been invoked by way of
filing the instant second application under Section 439 Cr.P.C.
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 Pilibanga
3. District Hanumangarh
4. Offences alleged in the FIR Under Section 8/22 of the
NDPS Act
5. Offences added, if any -
6. Date of passing of impugned 10.07.2024
order
2. The first bail application of petitioner came to be disposed of
by this Court vide order dated 06.03.2024 passed in
[2024:RJ-JD:38833] (2 of 13) [CRLMB-11751/2024]
SBCRLMB No.10564/2023. Hence, the instant bail
application.
3. 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. He is behind the bars since
15.08.2020. There are no factors at play in the case at hand
that may work against grant of bail to the accused-petitioner
and he has been made an accused based on conjectures and
surmises.
4. 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.
5. I have considered the submissions made by both the parties
and have perused the material available on record.
6. Perusal of the record revealing that on 15.08.2020 SHO Ast
Ali PS Pilibanga along with his team while on patrolling duty,
upon suspicion intercepted a Scotty bearing registration
No.PB03 AZ6820, which was being driven by Manjeet Singh
and during search, 550 strips of Clovidol SR 100 containing
5500 tablets (2200 grams in weight); 80 strips of 0.5
Promozolam 800 Tablets (118.4 grams) were recovered from
the pittu bag. Total weight of recovered contraband was
2318.4 grams. On the basis of this the petitioner was
arrested On the basis of the said recovery, the petitioner was
arrested; the Investigating Officer took samples from the
[2024:RJ-JD:38833] (3 of 13) [CRLMB-11751/2024]
recovered articles, marked them and sent the same to the
FSL for its chemical examination.
7. It is an admitted situation that the samples which were taken
by the Seizing Officer from the spot on 15.08.2020 were sent
to the FSL for chemical examination but the same were not
taken in 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 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. 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. -
[2024:RJ-JD:38833] (4 of 13) [CRLMB-11751/2024]
(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.
(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. ........
[2024:RJ-JD:38833] (5 of 13) [CRLMB-11751/2024]
5. ........
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
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
[2024:RJ-JD:38833] (6 of 13) [CRLMB-11751/2024]
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 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.
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
[2024:RJ-JD:38833] (7 of 13) [CRLMB-11751/2024]
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."
11. In this instant matter too, the alleged contraband was
seized on 15.08.2020, 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.
[2024:RJ-JD:38833] (8 of 13) [CRLMB-11751/2024]
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.
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
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
[2024:RJ-JD:38833] (9 of 13) [CRLMB-11751/2024]
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 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
[2024:RJ-JD:38833] (10 of 13) [CRLMB-11751/2024]
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
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
[2024:RJ-JD:38833] (11 of 13) [CRLMB-11751/2024]
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)
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, around more than
four 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.
[2024:RJ-JD:38833] (12 of 13) [CRLMB-11751/2024]
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 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 the fact that out of total 15 witnesses till date only
seven 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 fact that
[2024:RJ-JD:38833] (13 of 13) [CRLMB-11751/2024]
petitioner is in custody for more than four 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
in the present matter.
17. 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 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 concerned on all the
dates of hearing as and when called upon to do so.
(FARJAND ALI),J
62-Mamta/-
Powered by TCPDF (www.tcpdf.org)
