Rajasthan High Court - Jodhpur
Sohan Lal vs State Of Rajasthan (2024:Rj-Jd:40247) on 25 September, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:40247]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 2nd Bail Application No. 12000/2024
Sohan Lal S/o Babu Lal, Aged About 26 Years, R/o Sankad, P.s.
Sanchore, Dist. Sanchore (Presently Lodged In Dist. Jail, Sirohi)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. S.K. Bhati
For Respondent(s) : Mr. Rajesh Bhati, AGA
assisted by Mr. Ravidra Bhati, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
25/09/2024
1. The jurisdiction of this court has been invoked by way of
filing the 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 Mandar
3. District Bhilwara
4. Offences alleged in the FIR Sections 8/21 & 29 of the
NDPS Act
5. Offences added, if any -
6. Date of passing of impugned 01.08.2024
order
2. The first bail application of the petitioner have been
dismissed as withdrawn on 11.12.2023 passed in S.B. Criminal
Misc. Bail Application No.15675/2023. Hence the instant bail
application.
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3. It is contended on behalf of the accused-petitioner that no
case for the alleged offences is made out against him and he is
behind the bars since 28.02.2022 and his incarceration is not
warranted. 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 challan papers and the other material available
on record.
6. Perusal of the material available on record revealing that on
28.02.2022 during nakabandi, SHO Ashok Singh stopped a
roadways bus RJ19 PB1034 and while conducting search, 600 gms
smack got recovered from the possession (bag) of Sohan Lal, who
was passenger therein. Thereafter, the petitioner was arrested
and the samples were taken by the Seizing Officer at the spot
from recovered contraband and marked them and sent the same
were sent 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 were marked and sent to the
FSL for chemical examination were not taken in the presence of
the Magistrate. In view of the 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).
[2024:RJ-JD:40247] (3 of 6) [CRLMB-12000/2024]
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 P11) is nothing but a waste paper and
cannot be read in evidence."
8. Moving on to the impediments contained under Section 37 of
the NDPS Act, it is considered relevant to refer to the recent ruling
passed by Hon'ble the Supreme Court in Mohd Muslim @
Hussain V. State (NCT OF DELHI)1 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
[2024:RJ-JD:40247] (4 of 6) [CRLMB-12000/2024]
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 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
[2024:RJ-JD:40247] (5 of 6) [CRLMB-12000/2024]
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)
9. It is nigh well settled law that at a pre-conviction stage; bail
is a rule and denial from the same should be an exception. The
purpose behind keeping an accused behind the bars during trial
would be to secure his presence on the day of conviction so that
he may receive the sentence as would be awarded to him.
Otherwise, it is the rule of Crimnal Jurisprudence that he shall be
presumed innocent until the guilt is proved.
10. Accordingly, the instant bail application under Section 439
Cr.P.C. is allowed and it is ordered that the accused-petitioner as
named in the cause title 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
[2024:RJ-JD:40247] (6 of 6) [CRLMB-12000/2024]
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
153-Mamta/-
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