Rajasthan High Court - Jodhpur
Panna Ram vs Central Narcotics Bureau ... on 5 May, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:21795]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 126/2025
In
S.B. Criminal Appeal No.129/2025
Panna Ram S/o Moola Ram, Aged About 26 Years, R/o Village
Aadarsh Chawa, Tehsil Barmer, Dist. Barmer (At Present Lodged
In Central Jail, Chittorgarh)
----Petitioner
Versus
Central Narcotics Bureau, Through Special Pp
----Respondent
Connected With
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 216/2025
In
S.B. Criminal Appeal No.220/2025
Dhana Ram S/o Nena Ram, Aged About 26 Years, R/o Dudhava,
P.s. Pachapadra Dist. Balotra
----Petitioner
Versus
C.b.n., Through Special Pp
----Respondent
S.B. Criminal Misc Suspension Of Sentence Application
(Appeal) No. 217/2025
In
S.B. Criminal Appeal No.221/2025
Devendra Kumar Siyag S/o Shri Lakshmanram Siyag, Aged
About 37 Years, R/o Abhaniyo Ka Sara, P.s. And Dist.
Barmer,raj. (Lodged In Dist. Jail, Jodhpur)
----Petitioner
Versus
State Of Rajasthan, Through Pp
(Downloaded on 09/05/2025 at 10:24:19 PM)
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----Respondent
For Petitioner(s) : Mr. Mahaveer Bhanwaria
Mr. M.K. Dudy
Mr. N.K. Gurjar
For Respondent(s) : Mr. Surendra Bishnoi, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
05/05/2025
1. The instant applications for suspension of sentence have
been moved on behalf of the applicants in the matter of judgment
dated 12.12.2024 passed by the learned Special Judge, NDPS Act
Cases, Pratapgarh in Sessions Case No.14/2022 whereby the
applicants were convicted and sentenced and sentenced as
under:-
Name of Offence for which Sentence, fine and
the accused convicted default sentence
Panna Ram Section 8/15 (ग) of the 12 year's RI along with fine of
Dhanna Ram NDPS Act Rs.1,20,000/- and in default to
further undergo one year's RI
Devendra Section 8/29 of the NDPS 12 year's RI along with fine of
Kumar Siyag Act Rs.1,20,000/- and in default to
further undergo one year's RI
All the sentences were ordered to run concurrently.
2. It is contended by the learned counsel for the appellants that
the learned trial Judge has not appreciated the correct, legal and
factual aspects of the matter and thus, reached at an erroneous
conclusion of guilt, therefore, the same is required to be
appreciated again by this court being the first appellate Court;
hearing of the appeals is likely to take long time, therefore, the
applications for suspension of sentence may be allowed.
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3. Per contra, learned public prosecutor has vehemently
opposed the prayer made by learned counsel for the accused-
applicants for releasing the appellant on applications for
suspension of sentence.
4. Heard learned counsel for the parties and perused the
material available on record.
5. The facts of the case revealing that the vehicle allegedly
carrying the contraband was intercepted near the office of CMHO,
Peepalkunt, District Pratapgarh. However, no search or seizure
was conducted at the spot. Instead, the vehicle was taken
approximately 101 kilometers away at the office of the
respondent-Department situated at Neemach (MP) and the entire
proceeding of search, seizure and arrest was made there. This
Court had an occasion to deal with legal situation in other case.
Particularly in the case of Major Singh Vs. State of Rajasthan
(SBCRLM2ndB No.5457/2024 decided on 08.05.2024), the same is
being reproduced as under:-
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 Ramsinghpur
3. District Ganganagar
4. Offences alleged in the FIR Sections 307, 332, 279, 337,
353 of the IPC and Section
8/15 of the NDPS Act
5. Offences added, if any -
6. Date of passing of impugned order 24.04.2024
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2. The first bail application of the petitioner being
SBCRLMB No.757/2024 came to be dismissed by this
Court vide order dated 14.02.2024 but a liberty was
granted to the petitioner to renew his prayer for bail
after recording the statement of the Seizing Officer.
Now, the statement of the Seizing Officer has been
recorded. 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.
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. He further submits that the
accused was taken into custody on 08.06.2022 and
since then he is behind the bars. Now, around two
years have lapsed but the trial is not going to be
culminated and still it seems that a further long time
shall be taken in conclusion of the same, thus, he may
be enlarged on bail.
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. Have heard and considered the submissions made
by both the parties and have perused the challan
papers, the statements of independent witnesses and
the other material available on record.
6. What is reflecting from the record that a vehicle
was intercepted by the police on 08.06.2022 near
Kumpli circle in which certain quantity of contraband
was recovered and, therefore, the petitioner and the
other person were apprehended at the spot and after
usual investigation, charge sheet came to be submitted
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against them for the above mentioned offences and the
trial commenced.
7. A perusal of the statements of independent
witnesses reflects that P.W. 1 Ajay Kumar, who
happens to be a witness and was projected by the
prosecution to verify the recovery from the vehicle but
he did not support the story set out by the prosecution
and turned hostile.
8. P.W.2 Balvindra Singh is also an independent
witness, who was working in his agricultural field
situated near crime spot and present at the time of
incident. In his on oath statement, he denied from the
fact of recovery of contraband.
9. P.W. 3 Deepak was also projected as an
independent witness who was present at the crime
place; but he turned hostile and didn't support the
story of prosecution.
10. Similar is the statement of P.W. 4 Balveer Singh
@ Billa and P.W. 5 Baldev Singh as both have totally
denied regarding the fact of recovery of the contraband
from the vehicle and did not support the story of the
prosecution. P.W. 6 & P.W. 7 Sukhpal Singh and
Gurmeet Singh also made the similar recital.
11. All the seven independent witnesses have
blatantly denied to give their support to the fact of
recovery of contraband made by the police.
12. The Seizing Officer Daula Ram has been examined
as P.W. 8. Although, in his examination-in-chief, he
narrated the story in the manner in which the incident
is shown to have occurred but when he was tested in
cross examination, he candidly admitted that the entire
memos, seizure, notices, arrest, search and recovery
memos were prepared in the police station premises.
13. The admission made by the above witnesses has
put a serious dent on the story of the prosecution to
the effect that a vehicle was intercepted by the police
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at a particular place and time and certain quantity of
contraband got recovered from it. In order to sanctify
the search and seizure of contraband, it was expected
from the Seizure Officer to prepare the memos at the
crime place that too in the presence of the independent
witnesses if available nearby the place. Present is a
case where several persons were available at or nearby
the crime place but not a single independent witnesses
has corroborated the factum of recovery memo. Taking
of the vehicle and the accused from the crime scene to
the police station and then preparation of memos
within the close precinct of the police station, as per
their convenience has lost the sanctity of the search
and seizure. Law requires that if certain thing is
recovered at a particular place on the given time then
the memos should be prepared at the same place in
the presence of witnesses and accused. Although, it is
a prima face and tentative opinion of this Court only for
the purpose of justifiable disposal of the bail
application.
14. Discussing the above circumstance, this Court has
taken a view in SBCRLMB No.11544/2023 titled as
Kamlesh Kumar Vs. Union of India decided on
30.10.2023. The relevant part is reproduced as under:-
5. Have considered the submissions made by both the
parties and have perused the material available on record.
The circumstances created by the Police team in this matter
brings the recovery into doubt. The statement of the seizing
officer recorded under Section 164 of Cr.P.C. reveals that the
process of seizure was conducted at the Office of
Superintendent CBN, Neemach instead of the place where the
recovery took place and the same is corroborated by the
Panchnama Japti. He submits that the sanctity of the seizure
made in the premises of Police Station is highly doubtful and
no explanation furnished by the team members as to why the
search and seizure was not made at the place where the
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vehicle was intercepted. It is not comprehensible as to what
was the need to conduct the seizure at a place located 20-25
kms away from the place where the vehicle was intercepted;
that too, at the premises of Office of Superintendent CBN,
Neemach and no reasonable explanation has been furnished
for the same. When the actual recovery had already been
made and search and seizure had already been conducted at
the shop and warehouse of the petitioner beforehand, then
why was the memo regarding the same prepared after a
significant period of time had passed at another place (CBN,
Neemach) making it seem as if seizure/recovery memo can be
prepared as a paper formality whenever it is convenient when
the actual, physical recovery had been made at a different
place, thus, watering down the sanctity of seizure/recovery
memo.
15. The credibility of the seizure memo looses
significance if the thing is recovered at a distant place
and it is taken by the police from the crime scene to
the police station and then memos got prepared in the
police station. If it is allowed then why not in every
case the things may be taken from the crime scene and
wherefter, the entire proceeding be undertaken in the
premises of police station and then why not in every
case the accused can be detained from any place and
whereafter his/her/their memo of arrest be prepared in
the police station. This Court is of the view that if
anything or any incriminating material is collected or
recovered from a particular place and at a particular
time then the seizure memo/recovery memo should
have been prepared at the same place and that too in
the presence of the witnesses of the same locality. A
slight departure or deviation can be permitted in case
when no other person is available to verify the fact of
recovery at the crime scene then the members of the
police party can be made witness of the fact of
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recovery. In certain circumstances, when there is
heavy rain or there is heavy traffic on the highway or
other like situation, in that cases also, the seizure
memo can be prepared at a nearby place so that the
proceedings can be undertaken calmly or safely.
However, it is not permissible for a police officer to pick
the contraband from a particular place then carry with
him to the police station which is situated at a far place
and whereafter prepare the seizure memo in the police
station premises. The moment this kind of practice is
permitted; the day is not far when there would be a
trait that the police officers will claim that though the
memos were prepared in the police station but the
things were recovered from a different place. In that
situation, the purity, originality, genuineness and
virtuousness would be lost and at the same time,
there would be serious aspersions regarding fairness
and genuineness of factum of seizure.
16. Besides the above, it is revealing that P.W. 8
Daula Ram, Seizing Officer took samples from the spot,
marked as 'A' to 'M' and sent the same to the FSL for
its chemical examination wherein presence of
phenanthrene alkaloids namely morhphine was
observed. Thus, the samples taken at the spot were
sent to the FSL which is against the mandate of law
because the same were not taken in the presence of a
Magistrate. As per Section 52-A of the NDPS Act, and
Standing Order No.1/89, issued by the Government, it
was imperative upon the police officer to prepare an
inventory and take samples in the presence of a
Magistrate and then send the same to chemical
examiner, so as to sanctify the process of seizure and
presence of contraband in possession of the accused.
Having not done so, the Investigating Agency has
committed a grave error and as such, the FSL report
would not help the case of the prosecution. In this view
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of the matter it can be said that the samples sent to
the FSL and the report of the FSL in this regard is
nothing but is a waste paper as propounded in a
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 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."
17. 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 two 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 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, it has been propounded that at the stage
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of hearing a bail application under Section 439 Cr.P.C.,
although it is not possible to make a definite opinion
that he is 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 is not
supposed to establish a case in support of his
innocence rather his 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. In view of the above, it is
deemed suitable to grant the benefit of bail to the
petitioner.
18. Accordingly, the instant second 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 Judge for his appearance before the court
concerned on all the dates of hearing as and when
called upon to do so.
Identical situation were observed in the case of Dharmendra
Singh (SBCRLM3rdB No.13299/2024).
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6. In view of the discussions made in the two cases supra,
there seems substance in the submission of counsel for the
appellant regarding their sense in appeal owing to vitiate recovery.
7. The plea of non-compliance of Section 42 of the NDPS Act
has also substance since despite prior information furnished by
informant, the same was neither written into writing nor duly sent
to the superior officers before proceeding for search and seizure.
This court feels that in an application for suspension of sentence,
whenever a strong arguable case is shown harping on the very
sustainability of judgment of conviction, the appellate court should
be liberal to extend the benefit of bail. A further fact of not taking
samples from each bag separately, puts the dent on in the case of
prosecution.
8. Considering the overall facts and circumstances of the case and
the looking to the totality of the facts and circumstances of the
case and not likelihood of hearing of appeals in near future, the
applications for suspension of sentence are accepted.
9. Accordingly, the applications for suspension of sentence filed
under Section 389 Cr.P.C. are allowed and it is ordered that the
sentence passed by learned trial Court, the details of which are
provided in the first para of this order, against the appellant-
applicants named above shall remain suspended till final disposal
of the aforesaid appeal and they shall be released on bail provided
each of them executes 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 in this court on 09.06.2025
and whenever ordered to do so till the disposal of the appeal on
the conditions indicated below:-
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1. That they will appear before the trial Court in the
month of January of every year till the appeal is decided.
2. That if the applicants changes the place of residence,
they will give in writing their changed address to the trial
Court as well as to the counsel in the High Court.
3. Similarly, if the sureties change their address(s), they
will give in writing their changed address to the trial
Court.
8. The learned trial Court shall keep the record of attendance of
the accused-applicant in a separate file. Such file be registered as
Criminal Misc. Case related to original case in which the accused-
applicant was tried and convicted. A copy of this order shall also
be placed in that file for ready reference. Criminal Misc. file shall
not be taken into account for statistical purpose relating to
pendency and disposal of cases in the trial court. In case the said
accused applicant does not appear before the trial court, the
learned trial Judge shall report the matter to the High Court for
cancellation of bail.
(FARJAND ALI),J
142-Mamta/-
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