Rajasthan High Court - Jodhpur
Anil vs State Of Rajasthan (2025:Rj-Jd:46748) on 29 October, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:46748]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 10310/2025
Anil S/o Shri Prabhulal, Aged About 22 Years, Gumanpura, P.s.
Vallabnagar, District Udaipur, Rajasthan. (At Present Lodged In
Central Jail Udaipur)
----Petitioner
Versus
State Of Rajasthan, Through P.p.
----Respondent
Connected With
S.B. Criminal Miscellaneous Bail Application No. 8295/2025
Kanhaiya Lal S/o Deva, Aged About 28 Years, Resident Koat
Kurabad, Police Station -Kurabad, District- Udaipur(Rajasthan).
(Presently Lodged In Central Jail - Udaipur)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Ramdev Rajpurohit
Mr.R.S. Rathore
Mr. Raj Kumar Sisodia
For Respondent(s) : Mr. N.S. Chandawat, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
29/10/2025
1. The jurisdiction of this court has been invoked by way of
filing an instant bail applications under Section 439 CrPC at the
instance of accused-petitioners. The requisite details of the matter
are tabulated herein below:
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S.No. Particulars of the Case
2. Concerned Police Station Dabok
3. District Udaipur
4. Offences alleged in the FIR Section 8/21 of the NDPS
Act
5. Offences added, if any -
6. Date of passing of impugned 03.07.2025
order (SBCRLM2ndB No.10310/2025)
6.A Date of passing of impugned 23.04.2025
order (SBCRLM3rdB No.8295/2025)
2. Briefly stated the facts of the case are that on 21.10.2023,
the Station House Officer Shri Chel Singh, Police Station Dabok,
submitted a report stating that on the said date, at about 10:30
a.m., he was conducting a blockade on the National Highway along
with the police team. During the blockade, a Maruti Swift car
bearing registration number RJ-27-CM-2487 was stopped. Three
persons were found seated inside the vehicle, and several
cardboard cartons were kept in it.
2.1. Drug Inspectors Kuldeep Singh and Neha Bansal were
summoned to the spot. On inquiry, the persons sitting in the
vehicle disclosed their names as Kanhaiya Lal, Kailash alias Harish,
and Anil. In the presence of independent witnesses, a search of
the vehicle was conducted, which resulted in the recovery of 13
cardboard cartons containing a total of 1259 bottles labeled as
"Chlorpheniramine Maleate & Codeine Phosphate
Syrup :MONOCOFF PLUS 100 ml."
2.2. The Drug Inspector present at the spot stated that the said
syrup contained Opium Derivative i.e. Codeine Phosphate, which
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falls under the category of narcotic substances. Accordingly, a
total quantity of 125.9 liters of Codeine was recovered from the
vehicle and seized as per legal procedure. Thereafter, on the basis
of the said report, FIR No. 334/2023 was registered at Police
Station Dabok for the offence under Section 8/21 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (NDPS Act). During
the course of investigation, the petitioners-accused Anil and
Kanhaiya Lal were arrested on 21.10.2023 for the said offence.
Subsequently, on 08.02.2024, after hearing arguments on charge,
the learned Trial Court framed charge against accused for the
offence under Section 8/21 of the NDPS Act.
3. It is contended on behalf of the accused-petitioners that no
case for the alleged offences is made out against them and their
incarceration is not warranted. The petitioners are behind the bars
since 21.10.2023. There are no factors at play in the case at hand
that may work against grant of bail to the accused-petitioners and
they has been made an accused based on conjectures and
surmises.
4. Contrary to the submissions of learned counsel for the
petitioners, 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 perused the material available on record.
6. It is revealing from the record that on 21.10.2023, SHO Shri
Chel Singh, Police Station Dabok, intercepted a Maruti Swift car
(RJ-27-CM-2487) during a highway blockade. Three occupants
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namely Kanhaiya Lal, Kailash alias Harish, and Anil were found
inside along with several cartons. In the presence of Drug
Inspectors Kuldeep Singh and Neha Bansal and independent
witnesses, a search yielded 13 cartons containing 1259 bottles of
"Chlorpheniramine Maleate & Codeine Phosphate Syrup
(MONOCOFF PLUS 100 ml)." The Drug Inspector opined that the
syrup contained Codeine Phosphate, an opium derivative, and a
total of 125.9 liters of Codeine-based syrup were seized
accordingly.
6.1. It is further observed that the samples drawn by the Seizing
Officer from the spot on 21.10.2023 were admittedly sent to the
Forensic Science Laboratory for chemical examination; however,
the sampling was not conducted in the presence of a Magistrate.
The failure to prepare an inventory and to comply with the
procedure prescribed under Section 52-A of the NDPS Act, as well
as the guidelines contained in Standing Orders Nos. 1/1988 and
1/1989, raises a serious legal issue.
6.2. Non-compliance with these mandatory provisions may have
a bearing on the very sustainability of the prosecution case, and if
ultimately decided in favour of the accused, could vitiate the
conviction itself. When there exist reasonable grounds to presume
that such procedural infirmities or legal defects may prove fatal to
the prosecution, denial of bail would amount to disregarding the
constitutional guarantee of personal liberty enshrined for every
individual.
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6.3. 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
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:
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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. ........
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.
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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 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.
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6.4. 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. 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.
6.5. 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
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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
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:
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"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
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
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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)
6.6. 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.
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6.7. 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 provisions of the NDPS Act, around more than one
year 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 are 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.
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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.
7. Considering the overall facts and circumstances of the case
and the fact that out of total 23 witnesses till date only three
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 petitioner is in
custody for more than one year 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.
8. Accordingly, the instant bail applications under Section 439
Cr.P.C. are allowed and it is ordered that the accused-petitioners
shall be enlarged on bail provided each of them furnish 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 their
appearance before the court concerned on all the dates of hearing
as and when called upon to do so.
(FARJAND ALI),J
37-Mamta/-
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