Rajasthan High Court - Jodhpur
Harshvardhan vs State Of Rajasthan (2025:Rj-Jd:11547) on 25 February, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:11547]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 2nd Bail Application No. 13297/2024
Harshvardhan S/o Balsingh, Aged About 20 Years, R/o Near
Gemna Gaaji Majjid, Mungra Road, Ps Balotra, Dist. Balotra, Raj.
(Lodged In Dist. Jail Barmer)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Bhagirath Ray Bishnoi
For Respondent(s) : Mr. Surendra Bishnoi, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
25/02/2025
1. The jurisdiction of this Court has been invoked by way of
filing the instant second bail 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 Sivana
3. District Balotra
4. Offences alleged in the Section 8/21 of the NDPS Act
FIR
5. Offences added, if any -
6. Date of passing of 26.09.2024
impugned order
2. At the time of dismissing the earlier bail application of the
petitioner as not pressed this Court vide order dated 22.08.2024
passed in SBCRLMB No.9464/2024 a liberty was afforded to the
petitioner to renew the prayer for bail after the statement of
[2025:RJ-JD:11547] (2 of 11) [CRLMB-13297/2024]
Seizing Officer is recorded as P.W. 1. Hence the instant bail
application.
3. Bereft of elaborate details, the facts necessary for disposal of
the instant bail application are that on 07.11.2023, Padmaram,
the SHO, PS Sivana along with his team during patrolling received
a secret information intercepted a vehicle which was being driven
by Harshvardhan S/o Balsingh Rajput. Upon search 100 Grams
MDMA was recovered during personal search from right pocket of
his pant. After seizure, he was arrested and and FIR aforesaid
got registered and a case under the NPDS Act came to be
registered against him.
4. 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. 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.
5. Contrary to the submissions of learned counsel for the
petitioner, learned Special Public Prosecutor opposes the bail
application and submits that the present case is not fit for
enlargement of accused on bail.
6. I have considered the submissions made by the parties and
have perused the material available on record.
7. It is the case of the prosecution that on 07.11.2023, the
police officials of PS Sivana intercepted a vehicle and 100 gms
MDMA got recovered from the petitioner. As a matter of fact
serious legal issues are involved in this case with regard to total
[2025:RJ-JD:11547] (3 of 11) [CRLMB-13297/2024]
non-compliance of mandatory provisions of the NDPS Act. The
other grounds with regard to flouting the rules of 3,8,9 & 13 of the
Rules of 2022. Here, is a question of bail only if the recovery
vitiates on the ground raised then the embargo contained under
Section 37 of the NDPS Act would not come in the way of
granting bail to the petitioner.
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
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
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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
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
[2025:RJ-JD:11547] (5 of 11) [CRLMB-13297/2024]
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 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
[2025:RJ-JD:11547] (6 of 11) [CRLMB-13297/2024]
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.
In this instant matter too, the alleged contraband was
seized on 07.11.2023, and mandatory provisions of NDPS Act
has not been complied with after the seizure.
9. This Court feels that though there is embargo contained
under Section 37 of the NDPS Act regarding grant of bail in
matters 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
[2025:RJ-JD:11547] (7 of 11) [CRLMB-13297/2024]
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
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
[2025:RJ-JD:11547] (8 of 11) [CRLMB-13297/2024]
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
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)
[2025:RJ-JD:11547] (9 of 11) [CRLMB-13297/2024]
10. 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.
11. 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, more than one year and three months 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
[2025:RJ-JD:11547] (10 of 11) [CRLMB-13297/2024]
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.
12. Considering the overall facts and circumstances of the case
and keeping in view that a strong arguable case available with the
petitioner and if the arguments raised herein above, would be
considered in his favour by the trial Court then the entire
recovery may vitiate, however, it is not the final opinion of this
Court, as the same would be adjudged by the trial Court after
considering the entire evidence brought on record and the
observations made hereinabove are for justifiable disposal of the
bail application thus, it is deemed suitable to enlarge the
petitioner on bail.
13. Accordingly, the instant third 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
[2025:RJ-JD:11547] (11 of 11) [CRLMB-13297/2024]
before the court concerned on all the dates of hearing as and
when called upon to do so.
(FARJAND ALI),J
82-Mamta/-
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