Harjindra Singh vs State Of Rajasthan (2024:Rj-Jd:42004) on 9 October, 2024

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Rajasthan High Court - Jodhpur

Harjindra Singh vs State Of Rajasthan (2024:Rj-Jd:42004) on 9 October, 2024

1. The jurisdiction of this court has been invoked by way of filing an instant second bail application under Section 439 CrPC at the instance of accused-petitioners. The requisite details of the matter are tabulated herein below:

S.No.                            Particulars of the Case
     1.     FIR Number                                 168/2023
     2.     Concerned Police Station                   Sadar Chittorgarh
     3.     District                                   Chittorgarh
     4.     Offences alleged in the FIR                Section 8/15 of the NDPS
                                                       Act
     5.     Offences added, if any                     --

6. Date of passing of impugned 01.04.2024 order (Downloaded on 19/10/2024 at 10:40:03 PM) [2024:RJ-JD:42004] (2 of 13) [CRLMB-4406/2024]

2. The first bail application of petitioners came to be disposed of by this Court vide order dated 22.02.2024 passed in SBCRLMB No.467/2024 with liberty of file afresh after recording the statement of Seizing Officer. Now, the statement of Seizing Officer is recorded. Hence, the instant bail application.

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. If the seizure of the contraband is not made as per the legal provision then the embargo contained under Section 37 of the NDPS Act is not applicable. There are no factors at play in the case at hand that may work against grant of bail to the accused- petitioners and they have 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 have perused the material available on record.

6. The Truck bearing No.PB-02-BV-9755 was intercepted on 16.05.2023. The police team of Police Station Sadar Chittorgarh seized the vehicle in the presence of driver and cleaner, in which 67 kg poppy husk was found from three plastic bags among plastic bags filled with gram. The contraband was seized. They were arrested on 16.05.2023 (Downloaded on 19/10/2024 at 10:40:03 PM) [2024:RJ-JD:42004] (3 of 13) [CRLMB-4406/2024] and since then they are in judicial custody. 17 months have been elapsed, thus, this Court feel persuaded to hear the bail application on merits.

7. After search and seizure, the petitioners were arrested on 16.05.2023 thereafter the articles which were seized at the spot were marked as 'A', 'B' and 'C'. No inventory was prepared and verified in the presence of the Magistrate as per the provision of Section 52A of the NDPS Act and the samples so verified were not sent for scientific investigation. As per the mandate of law, the samples taken in the presence of a Magistrate should be sent to the Forensic Laboratory. Not making inventory in accordance with the guidelines issued by the Government issued 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 won't be possible to be made since the report of FSL regarding samples taken at the spot by the Seizing Officer would not be sufficient.

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 (Downloaded on 19/10/2024 at 10:40:03 PM) [2024:RJ-JD:42004] (4 of 13) [CRLMB-4406/2024] 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:

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 (Downloaded on 19/10/2024 at 10:40:03 PM) [2024:RJ-JD:42004] (5 of 13) [CRLMB-4406/2024] 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.

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, (Downloaded on 19/10/2024 at 10:40:03 PM) [2024:RJ-JD:42004] (6 of 13) [CRLMB-4406/2024] 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 not be a serious question of law as to whether the FSL report of the samples taken from the spot and would be taken 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. (Downloaded on 19/10/2024 at 10:40:03 PM) [2024:RJ-JD:42004] (7 of 13) [CRLMB-4406/2024]

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 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 16.05.2023, 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 (Downloaded on 19/10/2024 at 10:40:03 PM) [2024:RJ-JD:42004] (8 of 13) [CRLMB-4406/2024] 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.

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 petitioners are not guilty may stifle or abort the judicial proceeding in the midway and then there would remain (Downloaded on 19/10/2024 at 10:40:03 PM) [2024:RJ-JD:42004] (9 of 13) [CRLMB-4406/2024] 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 (Downloaded on 19/10/2024 at 10:40:03 PM) [2024:RJ-JD:42004] (10 of 13) [CRLMB-4406/2024] (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 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 (Downloaded on 19/10/2024 at 10:40:03 PM) [2024:RJ-JD:42004] (11 of 13) [CRLMB-4406/2024] 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)

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 (Downloaded on 19/10/2024 at 10:40:03 PM) [2024:RJ-JD:42004] (12 of 13) [CRLMB-4406/2024] 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 17 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 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 (Downloaded on 19/10/2024 at 10:40:03 PM) [2024:RJ-JD:42004] (13 of 13) [CRLMB-4406/2024] 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 it can be speculated that a further more time will be consumed in reaching to the conclusion of the trial and looking to the 17 months' custody of the petitioners 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 petitioners 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-petitioners shall be enlarged on bail provided each of them 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 their appearance before the Court concerned on all the dates of hearing as and when called upon to do so.

(FARJAND ALI),J 58-Ashutosh/-

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Rajasthan High Court - Jodhpur