Shailendra vs State Of Rajasthan (2024:Rj-Jd:14091) on 20 March, 2024

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Rajasthan High Court - Jodhpur

Shailendra vs State Of Rajasthan (2024:Rj-Jd:14091) on 20 March, 2024

1. The jurisdiction of this court has been invoked by way of filing 3rd 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
      1.      FIR Number                                206/2020
      2.      Concerned Police Station                  Charbhuja
      3.      District                                  Rajsamand
      4.      Offences alleged in the FIR               Section 8/15(c)      of   the
                                                        NDPS Act
      5.      Offences added, if any                    -
      6.      Date of passing of impugned 22.03.2022
              order

2. The concise facts of the case as alleged in the FIR are that on 09.11.2020, the SHO P.S. Charbhuja Ms. Teena Solanki (Downloaded on 05/04/2024 at 09:01:09 PM) [2024:RJ-JD:14091] (2 of 8) [CRLMB-1188/2024] observed a vehicle in suspicious circumstances and thus detained it. The vehicle was allegedly being driven by the petitioner. It is alleged that upon search of the vehicle, 169 Kg poppy husk came to be recovered. The petitioner was arrested on 09.11.2020 since then he is behind the bars. Now, more than three and half 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.

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.

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. Heard and considered the submissions made by both the parties and have perused the material available on record.

6. Perusal of the record reveals that the Seizing Officer Ms.Teena Solanki was examined in trial as P.W. 3. Her team recovered 8 plastic bags from the vehicle and each bag was having less than 20 kg weight. Her team opened all the bags, lowered the substance on a tripal and whereafter the entire commodity of 8 bags were mixed together and the samples were taken from the ad-mixuture and then sent to the FSL. Admittedly, (Downloaded on 05/04/2024 at 09:01:09 PM) [2024:RJ-JD:14091] (3 of 8) [CRLMB-1188/2024] samples from each bag has not been taken individually rather the samples were collected from a mixtures of all bags and the mixed sample was sent to the FSL for chemical examination, which is contrary to the Standing Order Nos.1/1988 & 1/1989 issued by the Government Of India.

7. This court has passed a detailed order in S.B. Criminal Misc. 3rd Bail Application No. 1162/2022; Ramchandra v. State of Rajasthan, decided on 27.05.2022 wherein the rules pertaining to sample collection contained in Standing Order No. 1/1989 dated 13.06.1989 issued by Government of India under Section 52A of NDPS Act have been enumerated inter alia other aspects. The relevant para No.4 has been reproduced as under:-

"4. Heard learned counsel for the petitioner and learned public prosecutor. Perused the material available on record. The argument that collection of samples was not proper and in accordance with the procedure of sampling as per Standing Order No. 1/1989 seems to be worth considering. Clause 2.1 to 2.8 of the Violation Order/ Instruction No.1 of 1989 dated 13.6.1989 issued by the Government of India under Section 52 A of N.D.P.S. Act are of relevance to the present set of facts and are as follows:

2.1 All drugs shall be classified, carefully, weighed and sampled on the spot of seizure.

2.2 All the packages/containers shall be numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the persons from whose possession the drug is recovered and a mention to this effect should invariably be made in the panchnama drawn on the spot.

2.3 The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and charas (hashish) were a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for (Downloaded on 05/04/2024 at 09:01:09 PM) [2024:RJ-JD:14091] (4 of 8) [CRLMB-1188/2024] the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn. 2.4 In the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container. 2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects the packages/container may be carefully bunched in lots of 10 package/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of, 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn. 2.6 Where after making such lots, in the case of hashish and ganja, less than 20 packages/containers remain, and in the case of other drugs, less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn. 2.7 If such remainder is 5 or more in the case of other drugs and substances and 20 or more in the case of ganja \and hashish, one more sample (in duplicate) may be drawn for such remainder package/container.

2.8 While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative sample the in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.

In simple words, if there were eight plastic bags marked A, B, C,...., H that allegedly contained contraband, then eight separate representative samples from each plastic bag marked A1, B1, C1,...., H1 respectively and eight separate representative samples as control samples from each plastic bag marked A2, B2, C2,....,H2 respectively should have been collected foinvestigation. It is an act of utmost recklessness and irresponsibility that even after collecting separate samples from each of the eight bags, the samples were again mixed together and submitted for investigation as one admixture. Since the samples were not collected in an accurate manner and the possibility of there being no contraband in any one or more of the eight bags cannot be obviated, the contraband can be assumed to be below (Downloaded on 05/04/2024 at 09:01:09 PM) [2024:RJ-JD:14091] (5 of 8) [CRLMB-1188/2024] commercial quantity and the embargo contained under Section 37 of the NDPS Act is not attracted.

In Noor Aga v. State of Punjab, reported in (2008) 3 JIC 640, Hon'ble the Supreme Court has held that when directions are issued by lawful authorities, then they take the form of legal sanction and the sub-authorities are under obligation to comply with the same. Statutory instructions have been held to be mandatory in nature by the Apex court in Union of India v. Azadi Bachao Andolan, reported in (2004) 10 SCC 1. The logical upshot of the above mentioned precedents is that there cannot be flagrant violation of rules/guidelines, such as those specified in the Standing Order No. 1/1989, and it should be incumbent on the officers of investigating agency to comply with these rules so that sanctity of physical evidence in such cases remains intact and an unfavourable reasoning is not drawn against the prosecution/agency. The seizing officer(s) in the present case has not paid any heed to these rules and the samples were not collected individually so as to represent each of the small plastic polythenes rather samples were drawn from the admixtures contained in the 8 plastic bags.

8. Besides the above, it is observed that the samples were sent to the FSL after 162 days whilst as per the mandate of law, the same was required to be done within 72 hours of the seizure.

9. It is an admitted situation that the samples which were taken by the P.W. 3 Ms. Teena Solanki from the spot were sent to the FSL and samples were not taken in the presence of the Magistrate. In view of the 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 (Downloaded on 05/04/2024 at 09:01:09 PM) [2024:RJ-JD:14091] (6 of 8) [CRLMB-1188/2024] 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."

10. Moving on to the impediments contained under Section 37 of the NDPS Act, it is considered relevant to refer to the recent ruling passed by Hon'ble the Supreme Court in Mohd Muslim @ Hussain V. State (NCT OF DELHI)1 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 (Downloaded on 05/04/2024 at 09:01:09 PM) [2024:RJ-JD:14091] (7 of 8) [CRLMB-1188/2024] 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 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) (Downloaded on 05/04/2024 at 09:01:09 PM) [2024:RJ-JD:14091] (8 of 8) [CRLMB-1188/2024]

11. 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.

12. This Court is cognizant of the provision contained in Section 37 of the NDPS Act but considering the submissions made by learned counsel for the accused-petitioner regarding his long incarceration, this court is of the opinion that it is a fit case for grant of bail to the accused petitioner.

13. Accordingly, the instant 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.

(FARJAND ALI),J 62-Mamta/-

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Rajasthan High Court - Jodhpur