Rajasthan High Court - Jodhpur
Sunil vs State Of Rajasthan (2025:Rj-Jd:29270) on 7 July, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:29270]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 3rd Bail Application No. 5936/2025
Sunil S/o Ranaram, Aged About 24 Years, R/o Savrij P.s. Phalodi
Dist. Jodhpur Rajasthan Presently Lodged In Dist. Jail Pali
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Ashok Khillery
For Respondent(s) : Mr. Surendra Bishnoi, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order 07/07/2025
1. The jurisdiction of this Court has been invoked by way of filing the instant third bail application under Section 483 BNSS at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:
S. No. Particulars of the Case
1. FIR Number 145/2023
2. Concerned Police Station Sendara
3. District Pali
4. Offences alleged in the Section 8/15 of the NDPS Act FIR
5. Offences added, if any Section 8/25 of the NDPS Act
6. Date of passing of 23.04.2025 impugned order
2. At the time of dismissing the second bail application of the petitioner as not pressed this Court vide order dated 26.11.2024 passed in SBCRLMB No.13306/2024 but liberty was afforded to the petitioner to renew the prayer for bail after the statement of (Downloaded on 09/07/2025 at 09:37:40 PM) [2025:RJ-JD:29270] (2 of 12) [CRLMB-5936/2025] Investigating Officer is recorded. Hence the instant bail application.
3. Bereft of elaborate details, the facts necessary for disposal of the instant bail application are that on the basis of secret information received from a confidential informant, the Station House Officer, Police Station Sendra, along with the police force, intercepted an XUV vehicle bearing registration number HR 26- BQ-2144. Upon search, 14 black plastic sacks and one white sack containing poppy husk were recovered from the vehicle. The driver managed to flee from the spot, while the applicant/accused Sunil, who was seated in the front passenger seat, was apprehended. No valid license or permit was found in his possession for the said contraband. Accordingly, a case was registered against Sunil under Section 8/15 of the NDPS Act, and a chargesheet has been filed. The investigation under Section 173(8) CrPC remains pending against co-accused Mahendra and Vinod @ Unkarlal. The seizure officer PW-1 Dholaram has been examined, and the case is presently at the stage of prosecution evidence. Hence the instant bail application.
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 (Downloaded on 09/07/2025 at 09:37:40 PM) [2025:RJ-JD:29270] (3 of 12) [CRLMB-5936/2025] 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 the petitioner is in custody since 09.06.2023 in connection with recovery of 14 plastic sacks containing 305.480 Kg poppy husk however, the driver of the vehicle managed to abscond from the spot, whereas the petitioner was seated in the front passenger seat, was apprehended on the spot. He is not indulged in case of similar nature. Co-accused Unkar Lal @ Vinod has already been enlarged on bail vide order dated 31.05.2024 passed in SBCRLMB No.5898/2024. Furthermore, out of total 21 witnesses only four witnesses have examined and trial will surely take a long time to its conclusion.
8. In the case of V.D. Roy, the law has very elaborately discussed and even in that case Hon'ble the Supreme Court has propounded that the High Court should not hesitate to quash such proceedings upon noticing of non-compliance of mandatory provisions of NDPS Act by exercising inherent powers under Section 482 Cr.P.C. 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. The other grounds with regard to flouting the rules of 3,8,9 & 13 of the NDPS Rules of 2022 and the guidelines issued by the Government issued vide Standings Order Nos.1/1988 & 1/1989 is a serious question which if decided in (Downloaded on 09/07/2025 at 09:37:40 PM) [2025:RJ-JD:29270] (4 of 12) [CRLMB-5936/2025] 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.
9. 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:(Downloaded on 09/07/2025 at 09:37:40 PM)
[2025:RJ-JD:29270] (5 of 12) [CRLMB-5936/2025] 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 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 (Downloaded on 09/07/2025 at 09:37:40 PM) [2025:RJ-JD:29270] (6 of 12) [CRLMB-5936/2025] 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 undertaken in this case and thus, it would be a serious question of law as to whether the FSL report of the samples (Downloaded on 09/07/2025 at 09:37:40 PM) [2025:RJ-JD:29270] (7 of 12) [CRLMB-5936/2025] 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.
10. 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.
11. 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 (Downloaded on 09/07/2025 at 09:37:40 PM) [2025:RJ-JD:29270] (8 of 12) [CRLMB-5936/2025] not honoring the guarantee of the Constitution given to every individual regarding protection of his liberty.
12. 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 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 (Downloaded on 09/07/2025 at 09:37:40 PM) [2025:RJ-JD:29270] (9 of 12) [CRLMB-5936/2025] 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 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 (Downloaded on 09/07/2025 at 09:37:40 PM) [2025:RJ-JD:29270] (10 of 12) [CRLMB-5936/2025] 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)
13. 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 (Downloaded on 09/07/2025 at 09:37:40 PM) [2025:RJ-JD:29270] (11 of 12) [CRLMB-5936/2025] fundamental rights envisaged in the Constitution, that is, the right to life and personal liberty contained in Article 21.
14. 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 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 (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 (Downloaded on 09/07/2025 at 09:37:40 PM) [2025:RJ-JD:29270] (12 of 12) [CRLMB-5936/2025] 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.
15. 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.
16. Accordingly, the instant third bail application under Section 483 BNSS 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 before the court concerned on all the dates of hearing as and when called upon to do so.
(FARJAND ALI),J 30-Mamta/-
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